No. 26045-3-III.The Court of Appeals of Washington, Division Three.
July 22, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-04248-7, Jerome J. Leveque, J., entered April 16, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]UNPUBLISHED OPINION
SWEENEY, J.
This case follows a conviction for second degree assault of a child. The defendant assigns error to the trial judge’s refusal to allow evidence of possible alternative suspects. And he contends that there was insufficient evidence to find him guilty. We conclude that the trial judge did not abuse his discretion in prohibiting evidence of other possible suspects. And we affirm the conviction for second degree assault of a child.
FACTS
Juvenale and Jessica Dacosta are the parents of T.D. She is a three-month-old infant. Jessica Dacosta went back to work after the birth of T.D. The child’s father, Mr. Dacosta, became the primary caregiver. He did not work outside the home.
Ms. Dacosta took T.D. to her pediatrician, Dr. Timothy Crum, because the child cried excessively and vomited. The child would scream when her diaper was changed and could not stand on one of her legs. An X ray revealed that the infant’s femur had been broken.
A clinical radiologist, Dr. Terri Lewis, found that T.D. had multiple leg fractures and 38 rib fractures. The radiologist concluded that the fractures were not accidental.
The State charged Mr. Dacosta with assault of a child in the second degree committed between September 21, 2005 and November 16, 2005. The first trial before a jury ended in a mistrial. He waived his right to a jury for the second trial.
Mr. Dacosta wanted to introduce evidence of other possible alternative suspects (his wife and his mother). He tried to show that they also had access to the child and they did not get along. The judge refused to admit the evidence.
Dr. Lewis testified that the 38 rib fractures could have been caused by a number of injuries: a direct blow, squeezing, and/or slamming the child down onto an object. Dr. Deborah Harper, a pediatrician, also testified that these injuries were not accidental and were caused by more than one traumatic event.
The trial judge refused to dismiss the case against Mr. Dacosta for insufficient evidence. And he found Mr. Dacosta guilty of second degree assault of a child.
DISCUSSION
Exclusion of Evidence of Alternative Suspects
Mr. Dacosta argues that the trial judge erred in precluding evidence of other possible alternative suspects, specifically his wife and his mother. He cites State v. Clark for the contention that if a prosecutor’s case is largely circumstantial, then the defendant may overcome such evidence by presenting evidence of the same character to identify some other person as a possible perpetrator of the crime. State v. Clark, 78 Wn. App. 471, 475, 898 P.2d 854 (1995).
The State responds that the trial judge correctly excluded irrelevant evidence regarding other alternative suspects.
We review the admissibility of evidence for an abuse of discretion. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651
(1992). Evidence is admissible when it is relevant. ER 401. Relevant evidence is any evidence that has a tendency to make the existence of a fact more or less probable. Id.
To introduce evidence of other suspects a foundational basis must be presented or met. State v. Downs, 168 Wash. 664, 666, 13 P.2d 1 (1932); Rehak, 67 Wn. App. at 162-63. For example, evidence of opportunity, motive, and ability of another party to commit the crime is not an adequate foundation to introduce evidence of another suspect. Rehak, 67 Wn. App. at 162-63. A proper foundation would include the presentation of other evidence connecting such a party with the actual crime and not mere opportunity to commit the crime. State v. Maupin, 128 Wn.2d 918, 927, 913 P.2d 808 (1996).
Mr. Dacosta cites to Clark for the contention that less foundation should be required to introduce circumstantial evidence. Clark, 78 Wn. App. at 475. Essentially, the defendant may overcome such evidence by showing evidence of the same character identifying another person as the perpetuator of the crime. Id.
Clark does not apply here because the evidence Mr. Dacosta attempted to introduce was irrelevant. The evidence would have merely shown that his mother and wife had access to T.D. and at times they did not get along. This evidence was irrelevant and did not show that either of them caused 38 rib fractures and multiple leg fractures to the infant. Maupin, 128 Wn.2d at 927.
The trial judge supported this discretionary ruling with a number of reasons throughout the trial. He did “not believe those specific areas are necessary, nor admissible.” Report of Proceedings (RP) at 42. He felt that “[t]he only purpose for those would be to establish” an alternative suspect and in his opinion that was not admissible given the evidence presented. RP at 42. He explained that any problems between the daughter-in-law and mother-in-law existed “in a lot of marital situations” and that was not relevant or admissible for this crime. RP at 41-42.
Later, the trial judge explained that “there is no direct evidence that connects [the defendant’s mother, Kathleen Dacosta] with the crime of violence towards the child.” RP at 48. And “I do not believe that the defendant has reached or met the burden of establishing through a trail of evidence that would connect Kathleen Dacosta, physical evidence that would connect her to the charged crime.” RP at 49.
During the trial, the judge also stated that, “I have no information that will give me any comfort in believing that there is any evidence of directly connecting or directly indicating or of actual commission of the crime charged related to Kathleen Dacosta.” RP at 359. There is “no evidence connecting her with the crime.” RP at 359.
These are all tenable grounds for the trial judge’s refusal to admit the evidence here. Rehak, 67 Wn. App. at 162; ER 403. Sufficiency of the Evidence
Mr. Dacosta also argues that there was insufficient evidence directly linking him to the assault of his infant daughter. He again claims that several other people had access to the child and could have caused the injuries. The State responds that the evidence presented at trial along with the findings and conclusions support the conviction.
We review the trial court’s findings for substantial evidence, but only if they are challenged. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). If unchallenged, we treat the court’s findings as true. Id. We next determine whether those findings support the trial court’s conclusions of law. Id. We review conclusions of law de novo.
Id.
Assault of a child in the second degree requires proof that the defendant
[i]ntentionally assaults the child and causes bodily harm that is greater than transient physical pain or minor temporary marks, and the person has previously engaged in a pattern or practice either of (i) assaulting the child which has resulted in bodily harm that is greater than transient pain or minor temporary marks, or (ii) causing the child physical pain or agony that is equivalent to that produced by torture.
RCW 9A.36.130(1)(b).
Or, the State may show that the defendant committed “the crime of assault in the second degree, as defined in RCW 9A.36.021, against a child.” RCW 9A.36.130(1)(a). Assault in the second degree as defined under RCW 9A.36.021(1)(a) is the act of intentionally assaulting another person and recklessly inflicting substantial bodily harm, not amounting to assault in the first degree.
Mr. Dacosta only assigns error to the trial court’s conclusion that he is guilty of second degree assault of a child. The question before us then is whether the court’s findings support the conclusion that Mr. Dacosta is guilty of second degree assault of a child. See Ross, 106 Wn. App. at 880.
Here, the trial court found that the victim, T.D., sustained extensive injuries including: multiple rib fractures and multiple extremity fractures on both sides of her body. Clerk’s Papers (CP) at 180 (Finding of Fact 6). The injuries to T.D. were the result of significant trauma. CP at 180 (Finding of Fact 8). And T.D. was under the age of 18. CP at 179 (Finding of Fact 1).
The court also found that the injuries to T.D. occurred between September 21, 2005 and November 16, 2005. CP at 180 (Finding of Fact 3). Mr. Dacosta was the primary caregiver for T.D. after August 15, 2005. CP at 180 (Finding of Fact 5).
The infant here was injured when she was in the care of “a known adult caretaker, that sole, exclusive caretaker was Juvenale Dacosta, Jr.” CP at 180 (Finding of Fact 11). These findings easily support the trial court’s conclusion that Mr. Dacosta was guilty of second degree assault of a child. RCW 9A.36.130, .021; State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654
(1993).
We therefore affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and BROWN, J., Concur.