STATE v. RHOADES, 143 Wn. App. 1053 (2008)

No. 35408-0-II.The Court of Appeals of Washington, Division Two.
April 8, 2008.

Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-02021-9, Jay B. Roof, J., entered September 29, 2006.

Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Quinn-Brintnall and Penoyar, JJ.

VAN DEREN, A.C.J.

Richeal Marie Rhoades appeals her conviction for second degree murder of her 17-month-old daughter based on the underlying felony of criminal mistreatment. She contends that, in view of her diminished capacity defense, the evidence was insufficient to prove the culpable mental state of recklessness beyond a reasonable doubt. Holding that the evidence was sufficient to convince any rational trier of fact beyond a reasonable doubt that Rhoades was capable of appreciating the consequences of depriving her 17-month-old daughter of food and medical care, we affirm.

FACTS
Michael Rhoades served on a United States Navy submarine that was relocated from Georgia to Washington. As a result of the submarine’s duty station relocation and his deployment, Michael was separated from his wife, Richeal, [1] and their two children from June 2005 until December 11, 2005. In August 2005, Richeal moved to Washington with 17-month-old Brenda and Brenda’s 3-year-old brother to set up their new household in Navy housing.

On December 11, 2005, when Michael returned home from deployment, Richeal told him that their daughter was dead. She said that Brenda had been sick and that she had been afraid to take her to the hospital because she was frightened “about C[hild] P[rotective] S[ervices (CPS)].” Report of Proceedings (RP) at 193.[2] The next day, Michael told his superiors. Based on his report, paramedics responded to the residence, but Richeal denied them entry. The Bremerton police came to the house and asked Richeal if she had a child that needed assistance. Richeal directed the police to Brenda’s body, which she had double-wrapped in black plastic garbage bags and sealed in a cardboard box.

The Naval Criminal Investigative Service took Richeal’s statement because Brenda’s body was found inside the naval housing complex. Richeal told the investigators that in October 2005 she began to feel depressed and became distant from the children. In November, her depression worsened and she stopped tending to them. She placed a step stool in the kitchen to allow her 3-year-old son to get his own food and water and she stopped feeding Brenda solid food. She only fed her milk.[3] She tied her son’s bedroom door shut with an extension cord at night because he piled toys on top of Brenda in her crib.[4] She said she did not need to secure Brenda’s bedroom door because Brenda was too little to open it.

Richeal also reported that approximately a week before Thanksgiving, she left Brenda’s bedroom window open overnight, while Brenda slept, in order to air it out. Brenda developed a 102-degree fever. She gave Brenda medicine to reduce the fever and part of a sandwich and some dry cereal. Richeal’s written and initialed statement indicates that she “did not want to call the hospital or take [Brenda] to the emergency room, because [she] was afraid to get reported. [She] knew she had not been taking care of [the] kids and that Brenda was [malnourished].” Ex. 1 at 3. A few days later, she put Brenda in her bedroom and did not check on her for 40 to 44-hours. When Richeal finally did check on her, she found Brenda’s lifeless body blocking her bedroom door. She pushed the door open, placed Brenda’s body in a black plastic garbage bag along with a few soiled diapers, and left it in Brenda’s bedroom.

Richeal and her son spent Thanksgiving Day with their neighbors. Richeal provided pie and au gratin potatoes for Thanksgiving dinner. She told her neighbors that Brenda was sick in the hospital. She and her son spent the weekend after Thanksgiving with a “polyamorous” couple that she had met on the Internet.[5] RP (Sept. 18, 2006) at 7. She told the couple that Brenda was ill and staying with family. On December 9, 2005, in anticipation of Michael’s return, Richeal double-wrapped Brenda’s body, using another garbage bag, and sealed her in a cardboard box.

In a subsequent videotaped interview on December 13, 2005, [6]
Richeal stated that before she checked on Brenda following her 40-to 44-hour absence, she felt “[t]hat maybe [Brenda] had already passed on” “[b]ecause [Richeal] knew the lack of [her] caring and giving [Brenda] what she needed could cause [her death].” Ex. 5 at 412. An autopsy revealed that Brenda died “from malnutrition and dehydration and probable electrolyte imbalance, as a result of neglect and deprivation of food and water.” RP at 247.

Richeal was charged with first degree murder and two counts of second degree murder. She waived her right to a jury trial and the trial court ordered a mental evaluation in response to Richeal’s diminished capacity claim. At trial, both the State and Richeal offered expert testimony about her mental condition. At the conclusion of the presentation of the evidence, the trial court dismissed the first degree murder charge and one count of second degree murder. The trial court found Richeal guilty of second degree murder in violation of RCW 9A.32.050(1)(b), based on first and second degree criminal mistreatment under RCW 9A.42.020 and 9A.42.030, [7] and sentenced her to 220 months incarceration, the top of the standard range for second degree murder. Richeal appeals.

ANALYSIS
Richeal contends that, based on her diminished capacity defense, the “State presented insufficient evidence to establish that [she] subjectively knew that her actions created a substantial risk of harm to her children.” Br. of Appellant at 17.

I. Standard of Review

“A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When reviewing a challenge to the sufficiency of the evidence, we view the evidence, including evidence of diminished capacity, in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. See State v. Atsbeha, 142 Wn.2d 904, 921-22, 16 P.3d 626 (2001); see also State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). We must defer to the trier of fact on any issue involving “conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

II. Diminished Capacity Defense

A diminished capacity defense, in contrast to a plea of not guilty by reason of insanity (NGI), is not a complete defense.[8] See Atsbeha, 142 Wn.2d at 918; State v. Nuss, 52 Wn. App. 735, 739, 763 P.2d 1249
(1988). When diminished capacity is asserted, expert testimony, if “reasonably relate[d] to impairment of the ability to form the culpable mental state to commit the crime charged,” is admissible under ER 702 as evidence “to help the trier of fact assess the defendant’s mental state at the time of the crime.” Atsbeha, 142 Wn.2d at 917-18 (quoting State v. Greene, 139 Wn.2d 64, 74, 984 P.2d 1024 (1999)). But the State retains the ultimate burden of proving the requisite mental state beyond a reasonable doubt, and the question for the trier of fact is whether the State has proven all essential elements of the charged crime beyond a reasonable doubt. State v. James, 47 Wn. App. 605, 609, 736 P.2d 700
(1987).

III. Criminal Mistreatment and Culpable Mental State

Here, to support a conviction for second degree murder, the State had to prove beyond a reasonable doubt to any rational trier of fact that Richeal caused her daughter’s death in the course of committing the felony of first or second degree criminal mistreatment. RCW 9A.32.050(1)(b).

The essential elements of first degree criminal mistreatment are (1) that a parent or guardian, (2) recklessly, (3) withholds a basic necessity of life, [9] (4) from a child or dependent; (5) the withholding of which causes great bodily harm.[10] See RCW 9A.42.020 see also State v. Dunn, 82 Wn. App. 122, 127, 916 P.2d 952 (1996). “A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.” RCW 9A.08.010(1)(c).

In order to prove the culpable mental state of recklessness, the State had to prove beyond a reasonable doubt to any rational trier of fact that Richeal was aware of, and disregarded, the substantial risk of causing Brenda great bodily harm when she withheld adequate “food, water, shelter, clothing, and medically necessary health care.” RCW 9A.42.020(1) see RCW 9A.08.010(1)(c). Second degree criminal mistreatment differs only as to the last element and requires that withholding a basic necessity of life “(a) creates an imminent and substantial risk of death or great bodily harm,” or “(b) causes substantial bodily harm.” RCW 9A.42.030
(1).[11] Both require the State to prove the person acted recklessly.

IV. Evidence Supporting Guilt

It is undisputed that Brenda died while in her mother’s care and, as a 17-month-old child, she was dependent on Richeal for the basic necessities of life. In her brief on appeal, Richeal did not dispute the autopsy’s conclusions — that Brenda died because she lacked the basic necessities of life.[12] Furthermore, the law is clear that an act that “disregards a substantial risk [of great bodily harm] is a gross deviation from conduct that a reasonable [person] would exercise in the same situation.” RCW 9A.08.010(1)(c).

Here, before trial, Richeal admitted that she “did not want to call the hospital or take [Brenda] to the emergency room, because [she] was afraid to get reported. [She] knew she had not been taking care of [her] kids and that Brenda was [malnourished].” Ex. 1 at 3. And before she checked on Brenda after her 40 to 44-hour absence, she felt “[t]hat maybe [Brenda] had already passed on” “[b]ecause [she] knew, the lack of [her] caring and giving [Brenda] what she needed could cause [her death].” Ex. 5 at 412.

Both experts, psychologist Michael O’Leary for Racheal and psychologist Barry Ward for the State, agreed that Richeal exhibited borderline personality disorder and post-traumatic stress disorder with depression and dissociative behavior. But, unlike O’Leary, Ward did not diagnose bipolar disorder, although he admitted that Richeal exhibited some associated behaviors and that a diagnosis of bipolar disorder was not “an outrageous conclusion” on O’Leary’s part. RP at 432.

At trial, Richeal asserted a diminished capacity defense and O’Leary testified about her ability to form the culpable mental state of recklessness.[13] O’Leary acknowledged that Richeal was aware of certain risks, but testified that she was unaware that her conduct created a lethal risk to Brenda:

[DEFENSE COUNSEL:] How about the definition of recklessness?
[O’LEARY:] Absolutely not. She did not have the awareness. She — in order to disregard a risk, you have to have full awareness of the risk. The only risk that she thought that she’s running is that she might be turned into CPS because of the diaper rash and maybe the child being underweight.

RP at 332.

[DEFENSE COUNSEL:] The legal definition of recklessness, do you know what it is?
[O’LEARY:] Well, it assumes, among other things, that the person was knowledgeable. It assumes that the person was aware of the risks and ignored them. And I think I’ve covered in my testimony that I don’t think that this woman was aware of the risk even remotely. I mean, going from the child is a little underweight and has a diaper rash to appreciating that maybe her behavior had lethal consequences is an immense jump. I mean, I just don’t see anything in the history, in the testing, in my interview of her, or any of the materials that I reviewed that would suggest that she was fully aware.

RP at 329-30.

On cross-examination, he elaborated:

[STATE:] [W]hat is the legal standard you were applying when you offered the forensic opinion that [Richeal] lacked capacity to commit the charged crime?. . . .
[O’LEARY:] I looked at the statutes that pertained to the definition of recklessness and did not feel that that standard was met. And I looked at the standard for negligence and thought it was a closer call. But I did not think that she was fully aware that her behavior or — was, in fact, creating a lethal risk.

RP at 376-77.

Based on his responses to the questions on what legal standard he applied, O’Leary appears to have misconstrued the elements of first or second degree criminal mistreatment because neither great nor substantial bodily harm is synonymous with death or lethal risk. Therefore, his testimony that Racheal did not demonstrate the mental capacity to form the required reckless mental state because she did not understand that she created a lethal risk to Brenda is unpersuasive.

Furthermore, the trial court did not find O’Leary’s testimony credible. “[F]rankly, I was concerned by Dr. O’Leary’s report and his testimony. . . . His tone and demeanor suggested that he had a dog in the fight, that he had become invested in the outcome. He basically said a contrary opinion was all but impossible.” RP (Sept. 22, 2006) at 16. Conversely, the trial court found Ward credible: “I find that Dr. Ward’s testimony was more of an arm’s length, detached, and more objective. And I find it to be the more credible of the two. His conclusions were more embracing of the range of possibilities than were Dr. O’Leary’s.” RP (Sept. 22, 2006) at 17. And Ward’s forensic mental health report disagreed with O’Leary’s conclusions:

[T]he events leading to the death of Ms. Rhoades’ daughter occurred over the span of several days, and there is a great deal of evidence suggesting that in those days there were extended periods of intact perception, intact reality testing, and purposeful, goal-directed conduct. While one can speculate about her actual subjective purpose, the data unequivocally suggests that Ms. Rhoades was capable of perceiving her environment, capable of anticipating consequences, and capable of acting in a purposeful and goal-directed manner.

CP at 264.

Richeal contends that Ward “never actually reache[d] a coherent conclusion or hypothesis regarding [Richeal]’s mental state at the time [Brenda] died.” Br. of Appellant at 20. She states that Ward’s opinion was based on

[his] belief that there were no impairments to [Richeal]’s cognition, perception, judgment, or memory at the time of Brenda’s death. . . .
[Richeal]’s ability to perform such actions have no bearing on the determination of whether or not [she] had diminished capacity. As stated above, RCW 9A.08.010
defines the intent which must be present for an act to be considered a crime as follows: “A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.” The statute requires more than the ability to form “goal oriented” intent. The statute requires that the “goal” towards which the intent is “oriented” be a criminal act.

Br. of Appellant at 21 (citations omitted). She also argues that “[t]he State’s witnesses and the facts of the case do not support the conclusion that [Richeal] intentionally mistreated [Brenda].” Br. of Appellant at 28.

But Richeal also misconstrues the elements of criminal mistreatment and the application of a diminished capacity defense to a crime requiring a reckless culpable mental state. For the fact finder to conclude that Richeal was guilty of second degree murder predicated on criminal negligence, testimony about her intent was superfluous. The culpable mental state of “intent,” defined by RCW 9A.08.010, does not apply. The relevant culpable mental state — recklessness — required proof beyond a reasonable doubt that Richeal was aware that withholding adequate food, water, and medically necessary health care from her 17-month-old child created a substantial risk of great or substantial bodily harm. See RCW 9A.42.010(1) and RCW 9A.42.030(1).

Viewed in the light most favorable to the State, O’Leary’s testimony did not establish “that a mental disorder, not amounting to insanity, impaired [Richeal]’s ability to form the culpable mental state” of recklessness. Atsbeha, 142 Wn.2d at 921. Moreover, the trial court was confronted by conflicting expert testimony and concluded that Ward was the more credible expert witness. “Credibility determinations are for the trier of fact and cannot be reviewed on appeal.” State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

Finally, the evidence regarding diminished capacity was only one portion of the evidence the trial court considered:

Fifteen witnesses have been called during the course of this trial. I’ve heard their testimony. In addition, I have heard from [Richeal]. Certainly, she didn’t testify, but I heard from her in numerous statements, handwritten statements, transcribed statements, videotaped statements; and from [various witnesses], each of whom testified about conversations that they had with [Richeal]. And I heard from Dr. O’Leary and Dr. Ward.

RP (Sept. 22, 2006) at 10-11.

Richeal’s neighbor, who had frequent contact with her, was a witness. The neighbor testified that Richeal was able to shop, have an extramarital affair, and attend a potluck Thanksgiving dinner in November. Another witness testified that Richeal coherently participated in social and sexual activities with the “polyamorous” witness and her husband, both shortly before and immediately after, Brenda’s death. RP (Sept. 18, 2006) at 7.

And Richeal’s own statements indicate that she knew that her refusal to take Brenda to the emergency room or feed her could cause her death and that Brenda may have died during her long absence. This is clear evidence that she understood the risks associated with her failure to provide the basic necessities of life for a 17-month-old child.

When viewing all of the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that Richeal knew that withholding food, water, and medically necessary health care from her 17-month-old child created a substantial risk of great or substantial bodily harm. See RCW 9A.42.010(1) and RCW 9A.42.030(1). The evidence was sufficient to support her conviction for second degree murder based on criminal mistreatment because the evidence demonstrates that she understood and disregarded the risks her behavior posed to Brenda, thus satisfying the requirements of both RCW 9A.08.010(1)(c) and RCW 9A.32.050(1)(b) beyond a reasonable doubt.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Van Deren, A.C.J.

QUINN-BRINTNALL, J. PENOYAR, J., concur.