State v. JohnsonState v. Johnson
OPINION
Appellant, Ryan Adam Johnson, was convicted of first-degree murder while committing child abuse,
Johnson and his girlfriend, T.O., were the parents of 6-week-old Jonah. At around 3 p.m. on September 4, 2006, T.O. went to work. Because Johnson and T.O. lived in a hоuse with other members of T.O.’s family, Johnson rarely cared for Jonah, usually leaving Jonah in the care of T.O.’s family. On this day, however, Johnson was the primary caregiver. Before leaving for work, T.O. put Jonah down for a nap. According to Johnson’s statement to police, shortly after T.O. left, Johnson noticed that Jonah was fussing and gave him a pacifier. Johnson then went outside to smoke a cigarette.
Johnson gave a voluntary videotaped statement to the police in which he recounted the events that took place after he returned from his smoking break. Johnson said that he went to check on Jonah and noticed that he was taking deep breaths. Johnson piсked up Jonah and tried to regulate his breathing by gently shaking him, placing him on his stomach, and patting him on the back. When none of those techniques worked, Johnson threw Jonah up in the air towards the ceiling. When he came down, Jonah hit his head on the air conditioning unit. Johnson caught Jonah and then threw him across the
Johnson did not call 911. Rather, at around 4 p.m., he went downstairs and asked T.O.’s brother if he could use the phone. T.O.’s brother noticed that Johnson was very pale and had a dazed look in his eyes, but did not ask any questions and gave him permission to make the phone cаll. Johnson used the phone to call his mother, and he asked her to call T.O. at work and have T.O. call him. When T.O. called Johnson, Johnson told her that “[Jonah] was gone” and that Jonah ha[d]n’t “been breathing for 40 minutes.” When the conversation ended, T.O. called 911.
The police arrived at T.O.’s home. The officers noticed bruising on Jonah’s head, a discharge of a “brown and red color” from Jonah’s nose, and blood in Jonah’s mouth. The police attempted CPR on Jonah, but were unable to revive him. An ambulance took Jonah to the hospital, where a doctor pronounced him dead from the injury to his head.
During an autopsy, the medical examiner discovered acute fractures in three of Jonah’s ribs on his right side. The fractures were healing, which indicated that the injury had taken place at least two weeks prior to Jonah’s death. The medical examiner noted that the cause of death was not the rib fractures, but multiple blunt force injuries.
During his videotaped interview, the police asked Johnson about Jonah’s rib injuries. Johnson was not surprised that Jonah’s ribs were broken. He stated that around 2 weeks prior he “sat on” Jonah. Jonah had been fussing and crying, and Johnson stated that he “went over the edge” in toying to quiet him.
The police also questioned Johnson about his past interactions with Jonah. The police asked if “there were other times that you werе frustrated that you might have grabbed him or squeezed him or done something else?” Johnson responded, “Yeah, not really tight.” Johnson said that when Jonah would not take his bottle he would “squeeze a little bit more.” Johnson admitted that he knew it “wasn’t the right course of action to take” but that he did it anyway. He also testified that, at the time of the squeezing, Jonah wоuld “cry” and was “uncomfortable.” Later in the interview, Johnson again admitted to squeezing Jonah “previous times.” The police investigator asked Johnson if he squeezed Jonah “pretty hard” and Johnson responded “Yeah.” Still later, Johnson admitted that he squeezed Jonah “earlier times” and “a few times.” Johnson’s demonstration of how he squeezеd Jonah, recorded on the videotape, showed him holding a stuffed animal and strongly jerking the animal with both hands towards his chest.
A grand jury indicted Johnson on charges of first-degree child abuse murder and first-degree domestic abuse murder. Prosecutors also charged him with second-degree intentional murder. After a bench trial, the district court found Johnson guilty of all three murder charges. The district court found that, by Johnson’s own admission, he had squeezed the baby “a few times,” “previous times,” and “earlier times” which indicated that Johnson has squeezed Jonah more than once. The district court found that the squeezing incidents combined with the sitting incident established a pattern of both child abuse and domestic abuse. The district court then convicted Johnson on all three counts and sentenced him to life imprisonment for the first-degree child abuse murder conviction, but not the other two convictions.
I.
Johnson’s first argument is that the evidence was not sufficient to prove
The statutory definitions of first-degree child abuse murder and first-degree domestic abuse murder are nearly identical. Minnesota Statutes
The State has the burden of proving a past pattern of abuse beyond a reasonable doubt.
State v. Sanchez-Diaz,
Although a lone prior act cannot constitute a pattern, depending on the circumstances, two or more prior acts may be sufficient to establish a pattern. The question we face here is whether the State must prove each of those acts beyond a reasonable doubt.
We have said in the past that the State may prove a pattern beyond a reasonable doubt even if the State does not prove every claimed predicate act of the pattern beyоnd a reasonable doubt.
E.g., Sanchez-Diaz,
We elaborated on this point in
State v. Kelbel,
Here, the State presented evidence of at least two distinct prior acts of abuse: (1) that Johnson sat on Jonah breaking his ribs; and (2) that Johnson squeezed Jonah inappropriately while feeding him, causing him pain. The State argues that it need not prove each of those acts of misсonduct beyond a reasonable doubt in order to prove that Johnson engaged in a pattern of domestic or child abuse. We disagree.
In Cross and Kelbel, we said that the State must present enough evidence to prove that the defendant has engaged in a pattern of conduct beyond a reasonable doubt. But it simply does not follow thаt the State can prove a pattern beyond a reasonable doubt without proving any underlying act beyond a reasonable doubt. Cross and Kelbel correctly held that, in a case where there are multiple underlying acts in excess of what is necessary to prove a pattern, not all of the underlying acts need to be proven beyond a reasonable doubt. Nonetheless, in order to prove a pattern beyond a reasonable doubt, it is necessary to prove at least a minimum number of underlying acts beyond a reasonable doubt in order to prove a pattern beyond a reasonable doubt.
The first-degree murder statute enumerates various criminal acts constituting domestic or child abuse.
Johnson argues that the evidence presented by the State does not show that his prior conduct rose to the level of fifth-degree assault or malicious punishment of a child, and, therefore, the State did not prove beyond a reasonable doubt that he engaged in a pattern of child or domestic abuse. Although we agree with Johnson that the State must prove at least two incidents beyond a reasonable doubt, we disagree that the State has not met its burden.
A.
A person is guilty of fifth-degree assault if the person intentionally inflicts bodily harm upon another.
Johnson argues that the squeezing incidents happened in order to facilitate bottle feeding, and, therefore, the intent was to facilitate feeding and not to inflict bodily harm. But, in his statement to the police, Johnson directly admitted his intent to inflict bodily harm. He statеd that, while
Next, Johnson contends that, even if he intended to inflict bodily harm, there is insufficient evidence to prove that he actually did inflict bodily harm. Bodily harm is defined as “physical pain or injury.”
Johnson also argues that there is insufficient evidence that the “sitting” incident constituted fifth-degree assault because Johnson’s intеnt was to quiet Jonah from fussing and not to inflict bodily harm. But, by Johnson’s own admission he “went over the edge” in sitting on Jonah. Furthermore, it has never been a requirement that a defendant’s primary intent be to inflict bodily harm. Instead, “[t]he ordinary effect upon others of the acts alleged to constitute the crime may naturally be taken into account to determine intent.”
State v. Ott,
B.
Johnson also argues that the State did not present sufficient evidence to prove that he committed malicious punishment of a child in violation of
Johnson also contends that the “sitting” incident does not amount to malicious punishment of a child. The district court could reasonably have found that sitting on a baby and breaking three ribs in response to the baby fussing is unreasonable force under the circumstances. We hold that the State presented sufficient evidence to рrove beyond a reasonable
Because the State proved beyond a reasonable doubt that Johnson committed fifth-degree assault and malicious punishment of a child, we now must determine if the State proved that Johnson engaged in a pattern of conduct. We сonclude that it has. Johnson admitted to squeezing Jonah “a few times,” “previous times,” and “earlier times.” He also admitted to sitting on Jonah. As we have previously discussed, each of those underlying acts has been proven by the State beyond a reasonable doubt. Given that these incidents of abuse occurred within Jonah’s short 44-day life, and given that Johnson rarely cared for Jonah, the district court properly found that Johnson’s “regular way of acting” towards Jonah was abuse.
See Robinson,
II.
Johnson asserts that the district court erred in convicting him on both counts of first-degree murder as well as a count of second-degree murder. The State concedes that it could not convict Johnson of both first-degree child abuse murder and first-degree domestic abuse murder. Furthermore, the State may not convict a person for both a crime and its lesser-included offense.
Affirmed in part and reversed in part.
Notes
. At oral argument, Johnson's counsel argued that Jonah was crying and uncomfortable from a digestive system disorder rather than from the squeezing. But we consider the evidence in the light most favorable to the verdict.
Bernhardt v. State,