Steven John RINEHART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 5585.
Supreme Court of Wyoming.
March 1, 1982.
641 P.2d 192
Evidence only of the amount of attorney fees normally awarded in cases involving the same type of claim is insufficient upon which to award attorney fees, Greenough v. Prairie Dog Ranch, Inc., supra. A complete lack of evidence as to the value of attorney fees is likewise insufficient, Downing v. Stiles, supra. Evidence only of the usual charge made by a collection agenсy is also insufficient to an award of collection costs, Wallace v. Casper Adjustment Service, Wyo., 500 P.2d 72 (1972).
In this case, the amount stated in the affidavit as reasonable attorney fees was an amоunt already incurred for such. They were stated to be reasonable, and they were stated to be necessary. The amount was not computed on a percentage basis, or on the basis оf that normally awarded, or as a usual charge. The trial court had before it the record reflecting the amount of money involved in the case, the work performed, the manner in which it was done, the kind and complexity of the matter, the skill entailed and the responsibilities assumed. We require more than that reflected in the administrative portion of the record, but the affidavit in this case was sufficient for the purpose. The appellants did not indicate to the trial court that there was an issue over the fact of reasonableness of the attorney fees. See Wunnicke Finance Company v. Tupper, Wyo., 373 P.2d 142 (1962), and Edmonds v. Valley National Bank of Arizona, Wyo., 518 P.2d 7 (1974). Without giving the trial court some indication of the existence of a question of fact as to the reasonableness of the attorney fеes, the evidence upon which the award was here made in a summary judgment was sufficient. Combs v. Walters, Wyo., 518 P.2d 1254 (1974); Wallace v. Casper Adjustment Service, supra.
Affirmed.
Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Michael Schilling, Appellate Counsel, and Margaret White, Student Intern (argued), Laramie, for appellant.
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Allen C. Johnson, Sr. Asst. Atty. Gen. (argued), for appellee.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
RAPER, Justice.
Appellant was convicted of manslaughter pursuant to
We will affirm.
On the night of December 13, 1980, appellant, who at that time was living with Judith K, was left to babysit Ms. K‘s children. Sometime during the night appellant lost his temper with the youngest child, Heather, who was eleven months old. According to statements made by appellant afterwards, Heather “was being a pain in the
During the morning of December 14, 1980, Ms. K noticed a bruise on the child‘s head and asked the appellant about it. At that time appellant disclaimed any knowledge of how it could have gotten there. Later that same day, Heather began displaying several unusual symptoms. She fell asleep particularly еarly and then when she awoke she began vomiting.
During the next several days these symptoms continued along with an unusual amount of crying. Then on the night of December 16, 1980, Heather was taken to a hospital emergency room in Sheridan. She was later flown to a Denver hospital where she died at 9:38 a. m. on December 17, 1980. An autopsy showed the infant‘s death to have been caused by cerebral edema оr a swelling of the brain which placed too much pressure on the vital centers in the brain stem. Several subdural hematomas were also revealed.
The issue on appeal concerns the sufficiency of the evidence linking the brain swelling and the subdural hematomas to the incident which occurred on December 13, 1980. Appellant contends that the experts in their testimony failed to definitely conclude that the December 13, 1980 incident was the cause of death, and that thus there was an insufficient basis for the jury to find appellant guilty beyond a reasonable doubt.
“The oft-repeated rule by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of cоnsideration entirely the evidence of the defendant in conflict therewith, and we give to the evidence of the prosecution every favorable inference which may reasonably and
The prosecution called the doctor who had examined Heather at the hospital emergency room in Sheridan. He testified that in his opinion Heather‘s condition was caused by a shaking which produced tears in the blood vessel connecting her dura. Also called was the attending physician in Denver. He concurred with the view that Heather‘s death was ultimately caused by a shaking episode which resulted in the subdural hematoma and severe brain swelling. In his view the injury was most likely sustained within twenty-four to forty-eight hours before Heather‘s arrival in Denver; however, he also indicated that it could have occurred up to five days before. Finally, the pathologist who performed Heather‘s autopsy testified that her death was due to cerebral edema. His examination of Heather‘s body also showed subdural hematomas of hours to days duration. He was also of the oрinion the same incident caused the hematomas as well as the brain swelling, though he did acknowledge that it was possible they were caused by different incidents.
It also should be noted that Heather‘s mothеr indicated in her testimony that she was aware of no accidents which happened to Heather during the time period of December 13 through December 16. Of further import, Ms. K‘s testimony reflects that beсause of the child‘s illness, Heather was under constant supervision.
Based on the evidence the jury could reasonably have concluded beyond a reasonable doubt that Heather‘s death wаs the result of appellant shaking her the night of December 13, 1980. We are not free to substitute our own judgment for that of the jury and therefore must affirm the conviction.
Affirmed.
THOMAS, Justice, specially concurring.
I have no difference with anything that is said in the mаjority opinion in this case, and indeed I concur in it.
Reference there is made to expert testimony as to the likelihood that the injuries to Heather occurred in closer proximity in time to her dеath on December 17, 1980, than December 13, 1980. It was on December 13, 1980, that appellant admitted to having assaulted Heather. My perception of the appellant‘s argument is that it is out of this assertеd inconsistency that the claim of insufficient evidence to sustain the conviction arises.
I would foreclose that claim by calling attention to the fact that twice on December 16, 1980, the day before Heather‘s death, she was in the custody of the appellant. Heather‘s mother went to work about 9:00 or 9:30 a. m., and arrived home around 4:00 p. m. that day. The appellant babysat the children (Heather and an older brother) while she was at work. That evening Heather‘s mother went to visit her mother around 9:00 p. m., and about a quarter to 10:00 p. m. she received a telephone call from the appеllant advising that Heather was sick and that he had called the ambulance. He had been left in charge of Heather during this period also.
As I understand prior cases before this court, trauma, which according to expert testimony was inflicted by abusing the child, coupled with an opportunity to inflict the injuries, is sufficient evidence to sustain a conviction. Grabill v. State, Wyo., 621 P.2d 802 (1980); Seyle v. State, Wyo., 584 P.2d 1081 (1978); and Jones v. State, Wyo., 580 P.2d 1150 (1978). The evidence of the events on Decembеr 16, 1980, together with the expert testimony would be sufficient to sustain a conclusion by the jury that the fatal injuries were inflicted on that day. Consequently, I perceive an alternative theory upon which the jury lawfully could have convicted Rinehart which would be even more consistent with the expert testimony.
RICHARD V. THOMAS
JUSTICE
Notes
“Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, except as provided in