STATE v. MULDER, 29 Wn. App. 513 (1981)

629 P.2d 462

THE STATE OF WASHINGTON, Respondent, v. JOHNNY T. MULDER, Appellant.

No. 8615-4-I.The Court of Appeals of Washington, Division One.
June 8, 1981.

[1] Evidence — Opinion Evidence — Expert Testimony — Scientific Principle. An expert witness is permitted to offer an opinion concerning a principle which has gained general acceptance in the scientific community when the opinion is dependent upon inferences within the witness’ area of expertise and not a matter of common knowledge, even though the opinion includes an element of an ultimate issue to be determined by the jury.

[2] Criminal Law — Infants — Child Abuse — Battered Child Syndrome — What Constitutes. For purposes of prosecuting a crime involving the physical abuse of a child, the “battered child syndrome” is a recognized medical diagnosis. A qualified physician may testify as to the syndrome if he can express with reasonable probability the opinion that a particular injury or group of injuries suffered by a child is not accidental or is inconsistent with the explanation offered therefor and that the injury resulted from physical

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abuse of the child by a person of mature strength.

[3] Evidence — Opinion Evidence — Expert Testimony — Discretion of Jury. The jury is entitled to give such weight as it desires to the opinion of an expert witness.

[4] Evidence — Prejudicial Terminology — Discretion of Court.
The trial court must exercise its discretion in determining if the probative value of descriptive terminology implying criminal conduct outweighs the potential of such terminology to cause prejudice.

Nature of Action: A child died after being hospitalized with massive physical injuries. A person with whom the child had been living was charged with second degree felony-murder.

Superior Court: The Superior Court for Snohomish County, No. 79-1-00730-1, Paul D. Hansen, J., on March 10, 1980, entered a judgment on a verdict of guilty.

Court of Appeals: Holding that testimony describing the child’s injuries as the “battered child syndrome” was appropriate, the court affirms the judgment.

Cody, Hatch Bedle, Inc., P.S., and George W. Cody, for appellant.

Russ Juckett, Prosecuting Attorney, and Vickie K. Wallstrom
and James B. Roche, Deputies, for respondent.

ANDERSEN, J. —

FACTS OF CASE
The defendant, Johnny T. Mulder, appeals from the judgment and sentence entered following a jury verdict finding him guilty of second degree felony-murder.

From the limited record filed in this court, it appears that William Matthew Bowman, age 5, had been living with the defendant and his wife for 4 months prior to his death. The defendant was the child’s godfather. On September 30, 1979, the child was admitted to Stevens Memorial Hospital suffering from massive physical injuries. An internal abdominal injury was surgically repaired and the child was

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immediately transferred to Children’s Orthopedic Hospital, where he died on October 23, 1979. Following the child’s death, the State charged the defendant with second degree felony-murder.

At trial a medical doctor, Dr. Pendergrass, was permitted to testify over objection that in his opinion the injuries were the result of “battered child syndrome”, which he proceeded to define.

One issue is presented by this appeal.

ISSUE
Did the trial court err in permitting a doctor to testify concerning the effects of “battered child syndrome”?

DECISION
CONCLUSION. Under the facts of this case, there was no error in permitting the treating physician to give his expert opinion that the cause of death was “battered child syndrome”.

[1, 2] An expert witness may render an opinion concerning a scientific principle provided the principle has gained general acceptance in the scientific community. State v. Canaday, 90 Wn.2d 808, 812-14, 585 P.2d 1185 (1978). See also ER 702. Although no reported Washington cases have considered the issue, the battered child syndrome has become a well recognized medical diagnosis. The diagnosis is dependent on inferences, not a matter of common knowledge, but within the area of expertise of physicians whose familiarity with numerous instances of injuries accidentally caused qualifies them to express with reasonable probability that a particular injury or group of injuries to a child is not accidental or is not consistent with the explanation offered therefor but is instead the result of physical abuse by a person of mature strength. See generally Kempe, Silverman, Steele, Droegemueller Silver, The Battered Child Syndrome,
181 J.A.M.A. 17 (1962); Annot., Admissibility of Expert Medical Testimony on Battered Child Syndrome, 98 A.L.R.3d 306 (1980).

Expert testimony that a child was a victim of “battered

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child syndrome” has been held admissible and not an invasion of the jury’s domain, even though by this diagnosis the physician draws an inference of nonaccidental injury, a function usually left for the jury. People v. Jackson, 18 Cal.App.3d 504, 95 Cal.Rptr. 919 (1971); People v. Ellis, 589 P.2d 494 (Colo. App. 1978); People v. Platter, 89 Ill. App.3d 803, 412 N.E.2d 181 (1980); People v. De Jesus, 71 Ill. App.3d 235, 389 N.E.2d 260 (1979); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 98 A.L.R.3d 285 (1978); People v. Henson, 33 N.Y.2d 63, 304 N.E.2d 358, 349 N.Y.S.2d 657 (1973).

[3] The use of the term “battered child syndrome” by a physician does not, of course, necessarily indicate any wrongdoing by a particular defendant. People v. Jackson, supra.
Evidence must still be produced to establish that it was the defendant who caused the injuries in question. The trier of fact still must determine the weight to be given the expert’s testimony.

[4] We are mindful that the emotional appeal of an evidentiary presentation using the term “battered child syndrome”, particularly in the possibly highly charged atmosphere of a criminal prosecution involving the tragedy of a child’s death, can be particularly strong — perhaps to the point of unduly influencing a jury. A trial court must, therefore, in determining whether or not to allow a witness to use the term “battered child syndrome” (as distinguished from testifying to the nature of the injuries and their apparent cause as, for example, the injuries being multiple, severe, occurring repeatedly over a period of time, etc., as the case may be), carefully weigh its probative value against the potential of that term for causing prejudice. See State v. Stevenson, 16 Wn. App. 341, 346, 555 P.2d 1004 (1976).

Here, the trial court did not abuse its discretion by admitting the testimony. Although the definition employed by Dr. Pendergrass of “battered child syndrome” was unduly broad, it was not improper when viewed in context with other evidence admitted on the subject. Any deficiency

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was adequately dealt with during extensive cross-examination. Furthermore, any error in that connection was harmless because another treating physician, Dr. Feldman, testified in more precise detail that the child’s death resulted from nonaccidental means.

Affirmed.

RINGOLD, A.C.J., and DURHAM, J., concur.