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NO.

93-167

IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 THE STATE OF MONTANA, Plaintiff and Respondent, -vGREGORY JOHN MERGENTHALER, Defendant and Appellant.

APPEAL FROM:

District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD: For Appellant: William F. Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth Assistant Attorney General, Helena, Griffing, Montana: Mike McGrath, Lewis and Clark County Attorney, Carolyn Clemens, Deputy County Attorney, Helena, Montana Hooks, Appellate Defender, Helena,

Submitted on Briefs: Decided: Filed:

December 22, 1993 January 20, 1994

Justice James C. Nelson delivered the Opinion of the Court. Gregory Mergenthaler (Mergenthaler) appeals from a Judgment and Commitment of the First Judicial District Court, Lewis and

Clark County, based on a jury verdict convicting him of negligent homicide. We affirm.

The issues on appeal are as follows: 1. Did the District Court err in denying Mergenthaler's

motion to dismiss at the conclusion of the State's case? 2. Did the District Court err in allowing autopsy slides and

a photograph of the victim, while alive, to be presented to the jury? Mergenthaler began dating Donna Weinzetl (Donna) in November, 1991. Donna was the mother of Ashley Weinzetl (Ashley), who was Mergenthaler was convicted of negligent

born on November 29, 1990.

homicide in connection with the death of thirteen-month old Ashley on January 23, 1992. A few weeks prior to her death, on the evening of January 12, 1992, Ashley was hospitalized because of the flu, which caused She also suffered a febrile seizure, a

diarrhea and dehydration.

common seizure which occurs in young children suffering from a fever or febrile illness. was placed on an I.V. At the
time

she was hospitalized, she Dr. John

and tested for meningitis.

Reynolds, the admitting doctor, saw no bruises or other injuries on Ashley. well, Dr. Reynolds testified that Ashley responded to treatment

and by the morning of January 13, 1992, appeared to be a Ashley stayed in the hospital until 2

"nice normal happy baby."

January 15, 1992, in order to allow Dr. Reynolds time to complete testing of her urine, blood, and spinal fluids. discharged, Dr. Reynolds When she was

instructed Donna to feed the child

Pedialyte, an oral electrolyte solution, and prescribed amoxicillin for an ear infection. On January 18, 1992, Carole Keele, Donna's mother, babysat Ashley while Donna worked. Ms. Keele testified that Ashley ate normally that day. When Ms. Keele bathed Ashley, she noticed that

Ashley had a bruise on her foot from where the I.V. had been placed, but testified that there were no other bruises on Ashley. She also testified that Ashley did not appear to be ill that day. The next day, Ashley ate a normal breakfast, then Donna and Ashley attended church. Church members testified at trial that

Ashley was not as active that day as she usually was, but that she appeared healthy and had no bruises or marks on her face. After

church, Ashley ate lunch, took a nap, and played in the afternoon. Later that afternoon, Mergenthaler called Donna and said he would come and pick Donna and Ashley up to visit at Mergenthaler's house. A short time after arriving there, Donna went to the

grocery store to pick up fixings for dinner, and to rent a video. When Donna left the house, Ashley was asleep on top of

Mergenthaler's bed.

When Donna returned, Mergenthaler was holding Mergenthaler

Ashley and she was undressed except for a diaper.

told Donna that Ashley had vomited on the sheets and that he put her on the couch to run a bath. When he came out of the bathroom,

Ashley was lying on the floor; Mergenthaler told Donna that Ashley 3

fell bruise

off on

the the

couch. right did to

At side not the to

this of

time, Donna her head. Donna left

noticed

that

Ashley

had

a

Mergenthaler so she to went her back

like store get

what and

had Ashley

purchased with him. Upon and sleep

for

dinner, She also return watched 9:00 up the

went to the p.m.

apartment

pajamas she

for

Ashley. dinner went her she to

her they

Mergenthaler's video. Donna for She also

apartment, fed

prepared then to

Ashley, who another trip

around to to her pick stay

then

made

apartment decided to

blankets night a last at

Ashley.

Upon

her

return, she

Mergenthaler's to pick up

apartment, so her work

returned and

apartment

time

clothes were

curling in

iron. the same bed and

Mergenthaler, and, between to and Donna 10:00 be

Donna, and and 11:OO

Ashley p.m.,

sleeping woke got

Ashley

up up

crying and

appeared herself time,

having in

trouble order to

breathing. go to on the

Donna

dressed At that

Ashley

emergency head

room. were him

noticed asked five to

the hold

bruises Ashley, Ashley

Ashley's Donna

swollen. to do. At the

Mergenthaler Within that about

which began

allowed

minutes,

breathing to take

normally. Ashley to

time, Mergenthaler room. that a

convinced

Donna

not

emergency During Ashley, Ashley At for

night, small the

Mergenthaler flashlight night and 20,

and into her

Donna her

kept eyes

checking every

on

shining slept 4:30

hour. normal. ready and in

through a.m. She on

breathing Donna house

appeared and 5:30

January

1992,

awoke at

got a.m.

work. her

left would

Mergenthaler's not start.

discovered

car

Mergenthaler

assisted

her

4

getting the car started, then Donna left for work, leaving Ashley in Mergenthaler's care. Mergenthaler testified that he went back to bed after helping Donna start her car, but awoke around 6:30 a.m. when Ashley began crying. Mergenthaler then changed her diaper and tried to give her He testified that he did feed her

a bottle, which she refused.

three jars of baby food and that she then "passed out, just fell asleep again." Mergenthaler then watched television and later When he went to Mergenthaler

realized he had not given Ashley the amoxicillin. give her the medicine, she was barely breathing.

testified that he tried to wake her up by shaking and slapping her and that he tried to pry her mouth open but her jaw was locked. When he was unable to get Ashley to respond, Mergenthaler called his mother, who told him to call Donna. At about 9:00 a.m.,

Donna received a telephone call from Mergenthaler, telling her that Ashley's jaw was locked and that her body was limp. Donna

testified that she told Mergenthaler to call 911, but he denies this statement. room, then Donna called her doctor's office and the emergency Mergenthaler's apartment. When Mergenthaler

called

answered the telephone, he told Donna the paramedics were there. Donna went to the hospital and, upon her arrival, found that Ashley was in a trauma unit in critical condition. She was in a A CT scan

coma and unresponsive, with severe retinal hemorrhages.

showed that there were many areas of free bleeding within her head, including subarachnoid bleeding (at the bottom of the brain) and subdural bleeding (between the covering of the brain and the brain 5

itself). condition

The attending physician, Dr. Reynolds, diagnosed her as "whiplash shaken infant syndrome." Dr. Reynolds

testified that he had never seen a child injured in that manner from revival efforts, and further testified that Ashley's injuries were not consistent with a fall from a couch. Dr. Reynolds also testified that Ashley could not have eaten breakfast the morning of January 20, 1992, let alone have eaten three jars of baby food. He believed the injuries had likely occurred within the previous twenty-four to forty-eight hours. That Falls afternoon, Ashley was flown to the hospital in Great Dr. Ruggerie, a specialist in

for specialized care.

pediatric critical care, testified that, when Ashley arrived at the Great Falls hospital, his working diagnosis was child abuse. Dr. Ruggerie testified that Ashley's brain was so swollen that it had herniated, pushing the brain out of the skull through the base of the skull. He found her eyes dilated with significant retinal

bleeding, with one retina partially detached. Dr. Ruggerie noted significant external head injuries,

including swelling on the right side of her face and bruises on both sides of the face and over the ears. Ashley also had small Dr. Ruggerie agreed

pinpoint bruising around the base of her head.

that the injuries were consistent with those of a baby who had been severely shaken. He also opined that the injuries had occurred

within twenty-four hours of presentation. Ashley died on January 23, 1992. Dr. Henneford performed an autopsy, which showed that she had died from swelling of the brain 6

and bleeding within the cranial vault.

The autopsy revealed that

Ashley had severe bleeding within the brain, hemorrhaging of her retina, and one partially detached retina. Dr. Henneford testified

that the hemorrhaging and bleeding were consistent with a "shaken baby episode." He did not believe that the injuries could be the
Dr.

result of a fall from a couch or from revival efforts.

Henneford believed the injuries inflicted on Ashley occurred three to four days before her death on January 23, 1992. All three doctors who testified at trial agreed that Ashley's head injuries could not have occurred through a fall from the couch. They also agreed that the health care providers could not

have caused the significant bruising, nor could the bruising have occurred through choking or retching. Dr. Reynolds and Dr.

Ruggerie confirmed that the injuries had no relation to the flu symptoms Ashley had earlier in the week, and agreed that none of the injuries were indicative of a febrile seizure. On January 28, 1992, Mergenthaler was charged by information with negligent homicide. The above evidence was presented at a

trial held August 31, 1992 through September 3, 1992, and the jury returned a guilty verdict. After a hearing on December 7, 1992,

Mergenthaler was sentenced to ten years in prison and was ordered to pay restitution for all of Ashley's medical and funeral expenses as a condition of parole. Mergenthaler appeals. I - MOTION TO DISMISS Mergenthaler contends that the District Court erred in denying
7 From

that Judgment and Commitment,

his motion to dismiss the information at the conclusion of the State's case. Essentially, he argues that there was insufficient

evidence to support the charge that he is the person who inflicted the injuries on Ashley. We disagree.

When the issue on appeal is whether there was sufficient evidence to support a jury verdict, whether, the the standard of review is

after viewing the evidence in the light most favorable to

prosecution, any rational trier of fact could have found the State

essential elements of the crime beyond a reasonable doubt. v. McLain (1991),

249 Mont. 242, 246, 815 P.2d 147, 150. A

directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. Mont. 202, 210, 841 P.2d 542, 547. Mergenthaler was charged with negligent homicide, which is State v. Haskins (1992), 255

defined as negligently causing the death of another human being. Section 45-5-104, MCA (1991). "Negligently" is defined as follows: a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Gross deviation" means a deviation that is considerably greater than lack of ordinary care. . . . Section 45-2-101(37), guilty MCA (1991). Thus, in order to find

Mergenthaler

of negligent homicide, the jury had to find

that he grossly deviated from the standard of ordinary care in his conduct with Ashley. After reviewing the entire record in this 8

case in the light most favorable to the State, we conclude that the State introduced sufficient evidence to establish all the essential elements of the crime beyond a reasonable doubt. Mergenthaler himself admitted that he shook and slapped Ashley, allegedly in an attempt to get her breathing. strong In addition,

evidence was presented to show that Mergenthaler had All the doctors who

severely injured Ashley while Donna was gone.

testified at trial concluded that Ashley's head injuries could not have occurred through a fall from the couch, as Mergenthaler claimed. In addition, all the doctors agreed that the injuries

could not have occurred when Ashley vomited or if she was choking or retching. Rather, the evidence showed that Ashley had been

severely shaken and that this shaking caused her brain to swell and ultimately caused her death. It is clear .that circumstantial evidence may be used to prove any element of an offense. 435, 795 P.2d 429, 433. State v. Lynn (1990), 243 Mont. 430,

All the evidence presented at trial

indicated that Ashley was normal and healthy when she went to Mergenthaler's apartment on January 19, 1992. The evidence

indicated that the injuries were acute and occurred on that day. Mergenthaler had custody and control over Ashley during the period of time when the bruises first appeared on her face. The jury

could readily infer that an incident occurred where Ashley was injured during the time Donna was apartment. away from Mergenthaler's

While Mergenthaler could not be compelled to testify,

he chose to do so, but did not offer any rational explanation for 9

Ashley's

severe

injuries

incurred

while

she at

was

in was had some

his

care. by the

In fact, Merqenthaler's the couch then. bruises the jars State's on evidence. 19, all He 1992, the face

testimony claimed and

trial Ashley

discredited fallen facial off

that

January

likely who have

received testified been

bruises the off three

However, on

doctors could not

concluded by

that

Ashley's In

caused that

falling ate

couch. of

addition, food there on

Merqenthaler January no 20,

claimed 1992. way

Ashley Dr.

baby that

However, Ashley at

Reynolds eaten was

testified that

was

possible her

could the

have she

amount to

of the

food,

given

condition

time

admitted We evidence

hospital. that which the a State provided trier a significant of fact amount of find hold to

conclude upon

rational a

could we motion

Mergenthaler that the at

guilty District the

beyond Court

reasonable denied State's AND

doubt.

Therefore,

properly of the

Merqenthaler's case. PHOTOGRAPH

dismiss

conclusion II -

AUTOPSY

SLIDES that

Mergenthaler allowing Ashley, Our rulings Inc. the while State

contends to to

the

District slides and

Court a

erred

in of

present the

autopsy We

photograph

alive, of

jury.

disagree. to discretionary its trial court Steer, 601,

standard is whether

review trial

relating court

the

abused

discretion.

v. Dep't

of Revenue (1990),

245 Mont. 470, 475, 803

P.2d

603-04. At autopsy trial, on Dr. Henneford, to the slides physician taken who performed autopsy the when

Ashley, referred

during

the

10

he well

was

explaining

the that

nature the

of

the

injuries have

to

the

jury.

It is in 120,

established

trial v.

courts Warnick are

wide

discretion 202 Mont. the the

admitting

photographs.

State

(1983),

127, 656 P.2d 190, 194. of and 221 explaining the Mont. jury 503, and in

Photographs the

admissible and for

for

purpose court

applying

evidence the 1248, as case.

assisting

understanding 719 P.2d

State When at is v.

v. Johnson considering the

(1986), whether must

515, be

1256.

photographs determine by the

should whether

admitted

evidence value State

trial,

court

their unfair 50 the

probative prejudice. Rep.

substantially Gollehon

outweighed 1993),

danger

of -.I

(Mont.

_ P.2d me....-, In taken by

St.

1564,

1567. twenty autopsy contended should during allowed that, photographs that have the to the been medical take the the

Gollehon, the

State

introduced The

medical

examiner.

defendant value and

photographs excluded. examiner's photographs photographs committed, the other that a

had The

little photographs

probative were the

only jury

exhibited was We not held

testimony, into depicted they were would of be be the

and

deliberations. the brutality We

although of did any will the not

and

viciousness that we

crimes

admissible. arouse the

stated jurors'

believe

photographs evidence trial must in

passions "We

more than

defendant's to the

conduct. that 50

not

demand

sanitized

point

important Rep. were at

and

probative

evidence As during State

excluded.t' the

Gollehon, slides for

St. here

1567. exhibited The the

Gollehon,

autopsy

only

Dr. Henneford's did not

testimony the

demonstrative into evidence;

purposes. therefore,

introduce

slides

11

jury was not allowed to take the slides into deliberations. In addition, the District Court only allowed a few to be shown during Dr. Henneford's testimony. Dr. Henneford testified that the slides

were helpful in describing the procedures he used, and referred to the slides to describe the nature and extent of Ashley's injuries and to show that her injuries could not have occurred through choking, gagging, or as the result of a fall or febrile seizure. We hold that the autopsy slides provided important and probative evidence in explaining to the jury how and why Ashley died, and thus were properly used for demonstrative purposes. The State also introduced a photograph of Ashley when she was alive. Mergenthaler contends that this was prejudicial error.

Again, after reviewing the transcript of trial proceedings, we find that the District Court carefully reviewed various in-life

photographs in chambers and rejected a number of photographs, including one of Ashley sitting on Donna's lap. The District Court

allowed one photograph of Ashley, wearing a snowsuit, sitting on the back of a pickup truck, taken a few weeks before her death, to be introduced to the jury to show who the victim was and what she looked like. The child's size, age, condition, vulnerability, and health were central issues in this case. photographs person, (1992), are admissible We have previously held that

if they are relevant to describe a State v. Mayes

place,

or thing involved in the case.

251 Mont. 358, 371, 825 P.2d 1196, 1205. the State maintains that the photograph was 12

In this case,

relevant to show the jury how Ashley looked and what her health was a few weeks prior to the homicide. healthy, death. would The photograph shows a happy,

thirteen-month old child, taken a few weeks prior to her There was nothing in particular about this photograph that

inflame

the

passions

or

emotions of

the

jury,

and

Mergenthaler cannot show any prejudice. 1205.

See Maves,

825 P.2d at

We hold that the District Court did not abuse its discretion

in allowing the State to introduce the photograph of Ashley. Affirmed.

We Concur:

13

January 20, 1994 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: WILLIAM F. HOOKS Appellate Defender P.O. Box 200145, Captitol Station Helena, MT 59620-0145 HON. JOSEPH P. MAZUREK, ATTORNEY GENERAL Elizabeth Griffmg, Assistant 215 N. Sanders, Justice Building Helena, MT 59620 HON. JEFFREY M. SHERLOCK District Judge 228 Broadway, Dept 3 Helena, MT 59623 MIKE MC GRATH, COUNTY ATTORNEY 228 Broadway Helena, MT 59623 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA



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