Schultz v. StateSchultz v. State
- Reporters:
- , , ,
- Before:
- Bussey
OPINION
BUSSEY, Judge:The appellant, Gregory A. Schultz, was convicted in the District Court of Oklahoma County, Case No. CRF-84-3598, of Murder in the First Degree for which he received a sentence of life imprisonment. He appeals raising six аssignments of error.
At about 8:30 p.m. on July 19, 1984, the appellant brought twenty-month old Lindsay Jones, daughter of Lisa Jones, the appellant’s girlfriend, to Children’s Memorial Hospital. Lindsay had been left with the appellant at his home in Oklahoma City, while Lisa took her son to the hospital because of an illness. At the trial, four physicians, one of whom was a medical examiner, testified that Lindsay had been severely beaten, and that as a result, she developed a cerebral hematoma which subsequently led to her death on July 27,1984.
The appellant testified that he dropped Lindsay from waist high level while playing with her.
The appеllant’s first two assignments of error concern the information filed against the appellant. He first contends that the State tried him on a different theory than that charged in the information because it alleged that he and Lisa Jones, acting jointly, killed Lindsay Jones. The appellant cites
Gracy v. State,
13 Okl.Cr. 643, 166 P. 422 (1917), and
Cole v. Arkansas,
333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948) to support his proposition.
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However, these two cases are distinguishable. In
Gracy,
the trial court instructed upon a separate and similar offense which was admissible “as part of the res gestae of the act charged,” but which was clearly a separate offense. Because the jury returned a general verdict, this Court was unable to determine which of the two offenses was the basis for the verdict, аnd reversed the case. In
Cole,
the Supreme Court of the United States reversed a case where the defendants were charged and convicted under one statute, but the Supreme Court of Arkansas had affirmed the case based upon another statute, refusing to consider the validity of the statute under which the defendants were convicted. The information
1
in the case at bar charged the appellant and Lisa Jones, acting jointly, with beating Lindsay Jones and using unreasonable force which caused her death, citing section 701.7(C) of Title 21 [1982 Okla.Sess.Laws, ch. 279, § 1, now
The appellant also contends that the informatiоn was not sufficiently specific concerning what acts he was accused of committing against the victim. We have held that a statement of the acts constituting the offense, in ordinary concise languаge, and in such a manner as to enable a person of common understanding to know what is intended, is all that is required by
In his third assignment of error the appellant arguеs that the merger doctrine prohibits him from being convicted of Murder in the First Degree because the crime of which he was convicted is basically a felony murder, and the predicate felony merges with thе homicide. He cites
Tucker v. State,
675 P.2d 459 (Okl.Cr.1984) to support his argument.
Tucker
holds that the underlying felony of Beating or Injuring Children,
Merger of the felony and the homicide obviates a felony murdеr conviction. This has been the rule in this state for many years. See Jewell v. Territory, 4 Okl. 53, 43 P. 1075 (1896) (Syllabus 7). For instance, in Massie v. State, 553 P.2d 186 (Okl.Cr.1976), we held that child beating could not be a predicate felony when the death of the child resulted from the beating. But see now21 O.S.Supp. 1982, § 701.7(C) .
Sullinger v. State,
675 P.2d 472, 473 (Okl.Cr.1984).
See also Hinton v. District Court of Oklahoma County,
693 P.2d 1277 (Okl.Cr.1984). With the enactment of
The appellant’s fourth assignment of error comрlains that the trial court committed fundamental error by failing to instruct on appellant’s defense theory of accident. He admits that no such instruction was requested by defense counsel but states that a dеfendant has a right to have his theory of defense instructed upon, and that failure to do so whether or not such an instruction was requested is reversible error. He cites Dennis v. State, 556 P.2d 617 (Okl.Cr.1976). We have held that:
To necessitate an instruction on еxcusable homicide there must be some evidence of an accidental death and the evidence must establish that the defendant was ‘involved in some lawful act, by lawful means, with usual and ordinary caution, without any unlawful intent.’’ Johnson v. State, 506 P.2d 963 (Okl.Cr.1973).
Hunter v. State, 637 P.2d 871, 873 (Okl.Cr.1981). In the case at bar there was no evidence that the victim’s death was caused by an accident. Four medical experts examined the victim, all agreeing that the victim had multiple bruisеs over her head, inconsistent with accident or with a fall from three feet. The appellant put on evidence that the victim’s mother mistreated her and had on previous occasions beatеn her. The closing argument was based, not on the theory of accidental death, but on the theory that the child’s mother must have beaten her before the appellant arrived home on July 19, 1984. Even if the appellant’s testimony were believed that he dropped Lindsay Jones while playing with her, there is no evidence that the fall caused the death. Where there is an accident, but the evidence is uncоntested that the accident is not the proximate cause of the death, then a failure to instruct on excusable homicide is not error, because “there must be some evidence of an aсcidental death.” Therefore this assignment of error is likewise meritless.
In his fifth assignment of error the appellant alleges that the evidence was insufficient to support his conviction. The appellant argues that the uncontroverted evidence reveals he did nothing more than drop Lindsay accidentally on one occasion. He adds that this evidence was uncontra-dicted that such dropping could not have caused severe injury to the child. In reviewing the sufficiency of the evidence we are required to determine if any rational trier of fact could have found the essential elemеnts of the crime charged beyond a reasonable doubt. Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr.1986). The evidence is reviewed in the light most favorable to the prosecution. VanWoundenberg, 720 P.2d at 333. Such a review in this case reveals that sufficient evidence was presented. The State necessarily relied upon circumstantial evidence that the child was abused. The four physicians who testified all agreed that the extent of Lindsay’s injuries led them to conclude that she was abused, and that those injuries were recent. The medical examiner testified that the child’s death was caused by a severe trauma to the head which resulted in a subdural hematoma, and led tо acute bronchopneumonia. The physicians agreed that the accident described by the appellant could not have resulted in the extent of her injuries. The appellant admitted that Lindsаy was in his sole care during the time she received the injury which caused her to lose consciousness. He testified that when the child’s mother left Lindsay with him he observed no bruises on her. Having reviewed the transcript of the trial, we conclude that this assignment of error is merit-less.
Finally, the appellant maintains that newly discovered evidence which allegedly was available to the prosecution but undisclosed to thе defense prior to trial requires that the appellant be granted a new trial. In Marlow v. City of Tulsa, 564 P.2d 243 (Okl.Cr.1977) this Court set out the following test for whether or not a trial court has abused its discretion in refusing to grant a new trial:
1) Is the evidencе material? 2) Did the accused or his counsel exercise due dil *563 igence to discover the evidence before the trial? 3) Is it cumulative? 4) Is there a reasonable probability that if the newly discoverеd evidence had been introduced at the trial it would have changed the results.
Marlow, 564 P.2d at 245. The evidence upon which the motion for a new trial was based concerned a neighbor of the appellant whо testified that she saw a black man previously abuse Lindsay Jones and her brother, and that the man’s car had been at the appellant’s residence (at a time when the appellant’ would have been gone to work) on July 19, 1984. 2 However, such evidence does not meet two of the elements of the Marlow test. The basic defense of the appellant was that Lisa Jones abused her daughter. Given evidenсe of this by witnesses during the appellant’s case-in-chief, the jury still found the appellant guilty. The new evidence is therefore cumulative in the sense that the appellant is arguing that someone else hаd the opportunity to inflict the injuries on Lindsay. Furthermore the argument that Lisa Jones could have inflicted the injuries was stronger than the evidence the appellant now presents that another party could have inflicted the injuries and we cannot see how there is a reasonable probability that the newly discovered evidence if introduced at the trial would have changed the result. We find this assignment оf error to have no merit.
The judgment and sentence is AFFIRMED.
BRETT, P.J., and PARKS, J., concur.
Notes
. The information stated:
On or about the 19th day of July, 1984 A.D., the crime of Murder in the First Degree was feloniously committed in Oklahoma County, Oklahoma, by Lisa Jones and Gregory Schultz, who acting jointly, wilfully and unlawfully killed Lindsay Jones, agе 20 months. by beating her and using unreasonable force upon her, which caused her death on the 27th day of July, 1984, contrary to the provisions ofsection 701.7(C) of Title 21 of the Oklahoma Statutes, and against the peace and dignity of the State of Oklahoma....
. The record reveals that Lindsay Jones’ father is black, and Lisa Jones is white.