RICHARD LEWIS ATHEY, Appellant, v. THE STATE OF NEVADA, Respondent
Athey v. State
Steffen and Rose, JJ., concur.
RICHARD LEWIS ATHEY, Appellant, v. THE STATE OF NEVADA, Respondent.
RICHARD LEWIS ATHEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19831
August 21, 1990
797 P.2d 956
Laura Wightman FitzSimmons, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and John Lukens, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Young, C. J.:
Starting in September 1987, appellant Richard Athey lived with his girlfriend Donna Hutton and her 28-month-old son, Paul. On the evening of December 15, 1987, while Donna was away, Athey dialed "911" because Paul was comatose. When the paramedics arrived, Athey told them that Paul had fallen backwards off the bed, hit his head on the concrete floor, and lapsed into unconsciousness. Paul was rushed to the hospital and examined by several doctors, each of whom concluded that Paul's injuries were not consistent with Athey's story and appeared instead to have been caused by child abuse.
Paul was pronounced dead about 30 hours later. Following an autopsy, a pathologist concluded that the cause of Paul's death was homicidal and that the injuries probably resulted from blunt trauma or shaking. Thereafter, Athey was charged with felony child abuse and murder. He was convicted of both crimes and sentenced to seventeen years in prison for felony child abuse and a consecutive term of life with the possibility of parole for murder.
On appeal, Athey first contends that during the closing rebuttal argument, the prosecutor impermissibly changed his theory from one of physical abuse to one of emotional abuse when he stated that the jury could convict Athey of child abuse "for the living hell he put Paul Hutton through for those few short months that he lived with him." Athey asserts that this change in theory violated his Sixth Amendment right to be informed of the charges against which he was expected to defend.
The State contends, however, that this statement by the prosecutor referred to the physical abuse alleged in the information. Indeed, our review of the prosecutor's other references in closing rebuttal made shortly before this statement clarifies that he was maintaining a theory of physical abuse. Furthermore, even assuming that the prosecutor's statement referred to emotional abuse, there was no lack of notice because the information twice specifically alleged "or mental suffering."
Based on the above-quoted statement, Athey also contends that the prosecutor changed his theory as to when the alleged child abuse occurred. Therefore, he contends, he was convicted without notice of the child abuse charges concerning the three month period prior to Paul's death, in violation of the Sixth Amendment. However, both the complaint and the information specified that the crimes occurred "between September 1, 1987 and December 15, 1987." Therefore, Athey had notice that he faced charges of felony child abuse prior to December 15, 1987.
Thus, we hold that the prosecutor did not change theories in the middle of his closing argument, depriving Athey of notice of the charges against which he should be prepared to defend. There is, however, a question of law regarding the sufficiency of the evidence in support of the jury's verdict of "guilty of child abuse and neglect with substantial bodily harm."
The jury's verdict is consistent with felony child abuse as set forth in NRS 200.508(2). While the information specified that the crimes were committed between September 1 and December 15, 1987, the jury was not asked, nor does its verdict reveal, whether the conviction was for acts committed on December 15, 1987, or for acts committed prior to that night. If the jury's verdict concerned felony child abuse for acts prior to December 15, 1987, we hold that there is insufficient evidence of "substantial bodily harm" for a felony conviction. Contrast Childers v. State, 100 Nev. 280, 284, 680 P.2d 598, 600 (1984). Thus, we hold that Athey's conviction of felony child abuse cannot be sustained for the period between September 1 and December 15, 1987.
Nevertheless, it is quite clear from our review of the prosecutor's closing argument that he was urging a conviction based on acts occurring on the evening of December 15, 1987. Athey contends that his convictions of both felony child abuse and first degree murder for the acts of December 15 violate the constitutional prohibition against double jeopardy. Athey correctly notes that in Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986), this court clarified the two-part test for purposes of double jeopardy analysis. In Talancon, we said that first it must be determined whether there are two offenses or only one. The test to be applied is "whether each provision requires proof of a fact which the other does not." Id. at 298, 721 P.2d at 766 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Second, "where two statutory offenses constitute the 'same offense' under the Blockburger test, double jeopardy will not be violated by separate sentences for those two offenses following a single trial, if it appears that the legislature intended separate punishments." Id. at 301, 721 P.2d at 769.
Because the felony child abuse occurred on the same evening as the murder, Athey contends that the same act of child abuse constituted the basis for both offenses here. He persuasively distinguishes his case from the facts of Bludsworth v. State, 98 Nev. 289, 646 P.2d 558 (1982), in which substantial testimony established that the child had been seriously and persistently abused prior to the fatal injury and was a victim of the battered child syndrome. Id. at 290, 646 P.2d at 559. In Bludsworth, we upheld the conviction of separate offenses of child abuse and murder. Id. at 293, 646 P.2d at 560. Based on the evidence in his case, Athey asserts that, unlike Bludsworth, first degree murder could not have been committed in this case absent the commission of felony child abuse and that therefore the two convictions are based on the same offense. We agree.
Our next inquiry concerns whether the legislature nevertheless intended separate punishments. In Whalen v. United States, 445 U.S. 684 (1980), the United States Supreme Court stated that "where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Id. at 692. Although NRS 200.030 and NRS 200.508 both proscribe child abuse which results in death, we find nothing in these provisions that specifically authorizes cumulative punishment. See Missouri v. Hunter, 459 U.S. 359, 368 (1983).
Thus, because we have determined that the felony child abuse and the murder were the same offense and the legislature intended only one punishment for murder by child abuse, we hold that Athey's conviction of felony child abuse is barred by the prohibition against double jeopardy and must be reversed under the two-part test of Talancon.
Athey next contends that his conviction of first degree murder must be reduced to second degree because there was insufficient evidence of premeditation. The State correctly notes that "[t]he determination of the degree of crime is almost invariably left to the discretion of the jury." Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981). In Hern, this court emphasized that in reviewing the sufficiency of the evidence underlying a jury's determination, "[t]he issue is not whether this court would have found beyond a reasonable doubt that appellant was guilty of first degree murder, but whether the jury, acting reasonably, could have been convinced to that certitude by the evidence it had a right to consider." Id.
Athey contends that the facts in his case are distinguishable from those in Hern, in which we determined that "[t]he nature and extent of the injuries, coupled with repeated blows, constitutes substantial evidence of willfulness, premeditation and deliberation." Id. at 533, 635 P.2d at 281. He argues that the bruises found on Paul during the autopsy were more likely the result of emergency medical treatment than of abuse. He further argues that because Paul's scalp bruises blended together upon external examination and were only revealed as three discreet injuries upon autopsy, the jury could not legitimately infer premeditation.
We believe that the jury's inference of premeditation was all the more legitimate precisely because it learned that what initially appeared to be one injury was actually several. Furthermore, we conclude that the present facts are virtually identical to those in Hem. The lay testimony about appellant's prior treatment of Paul and the expert medical testimony about the cause of death and about Paul's injuries on December 15, 1987, provided ample circumstantial evidence of premeditation. Given the jury's discretion in determining the degree of murder, we hold that there was sufficient circumstantial evidence from which the jury could infer premeditation. See Hern, 97 Nev. at 533, 635 P.2d at 281. Therefore, Athey's conviction of first degree murder cannot be reduced to one of second degree.
Athey next contends that several instances of prosecutorial misconduct require reversal of both of his convictions. First, he asserts that the prosecutor abused his function by severing Donna Hutton, Paul's mother, from the complaint. He argues that the State severed Hutton but did not proceed against her, so that she was forced to assert her privilege against self-incrimination for fear that the felony charges would be pursued. Athey contends that the prosecutor's conduct constituted reversible error under our decision in Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978).
Even had Hutton's case not been severed, however, she still could have asserted her privilege against self-incrimination. Furthermore, unlike in Franklin, there is no evidence to show that the State persuaded Hutton that it would not prosecute if she did not testify for Athey.
Second, Athey asserts that a number of the prosecutor's statements to the jury during closing argument mandate reversal of both of his convictions. Athey acknowledges that defense counsel failed to preserve for our consideration these allegations of misconduct because counsel made only one objection during the prosecutor's closing argument. See Williams v. State, 103 Nev. 106, 110-111, 734 P.2d 700, 703 (1987). He contends, however, that "where the errors are patently prejudicial and inevitably inflame or excite the passions of the jurors against the accused, the general rule does not apply." Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986) (citation omitted).
Our review of the record reveals that the errors, if any, were not so prejudicial and inflammatory as to justify a departure from the general rule stated in Williams. With respect to the conduct objected to at trial, the prosecutor's statements were nothing more than comments on the evidence and his view of what the evidence showed. See Santillanes v. State, 104 Nev. 699, 702, 765 P.2d 1147, 1149 (1988) and State v. Green, 81 Nev. 173, 176, 400 P.2d 766, 767 (1965).
Athey further contends that under Sipsas, the district court abused its discretion in admitting two autopsy photographs of Paul's head because their prejudicial impact outweighed their probative value, Sipsas is distinguishable, however, because there the witness merely said the photograph "might" help him explain the cause of death. Id. at 122, 716 P.2d at 233. Furthermore, the trial judge in Sipsas initially denied admission of the photograph after finding that the prejudicial effect outweighed its probative value; later, the same photograph was erroneously admitted on another basis. We concluded that the district court abused its discretion in admitting the photograph which it had already found to be more prejudicial than probative. Id. at 124, 716 P.2d at 234.
By contrast, in the present case the witness stated affirmatively that the photographs would assist her in explaining the victim's injuries. In addition, the trial judge determined that the two autopsy photographs were more probative than prejudicial. In sum, we hold that the district court did not abuse its discretion in admitting the photographs. See Ybarra v. State, 100 Nev. 167, 172, 679 P.2d 797, 800 (1984).
Athey contends that even if this court disagrees that the separate assignments of error mandate reversal of his convictions, reversal is required under the doctrine of cumulative error. However, because we find no error other than in the conviction of felony child abuse, the doctrine does not apply here.
Having considered all of appellant's additional contentions and found them without merit, we hereby vacate the conviction of felony child abuse. In all other respects, the judgment of the district court is affirmed.
Steffen and Rose, JJ., concur.