Appeal from Superior Court of Clallam County. Docket No: 93-1-00057-9. Date filed: 07/25/94. Judge signing: Hon. George L. Wood Jr.
As Amended. Petition for Review Denied May 7, 1997,
Authored by David H. Armstrong. Concurring: Karen G. Seinfeld, John E. Turner.
The opinion of the court was delivered by: Armstrong
ARMSTRONG, J. -- A jury convicted Osei Myron Esters of second degree murder of his 10-week-old daughter by means of second degree assault. The jury instruction defining assault did not require the jury to find that Esters assaulted his daughter with intent to harm her. On appeal, Esters contends (1) the jury instruction defining assault was flawed because it omitted the element of specific intent to harm, and (2) the trial court should have declared a mistrial following testimony regarding his lack of grief and his post-Miranda silence. We affirm, holding that second degree assault by battery does not require the specific intent to harm, and that the trial court did not abuse its discretion by denying the motions for mistrial.
During her 10 weeks of life, Melody Esters was hospitalized four times for abnormal breathing. On the final hospitalization, the Esterses rushed Melody to Olympic Memorial Hospital, where she was found to be comatose, pale, and in respiratory distress. Her blood pressure was low and her abdomen was distended and bruised. A chest x-ray revealed fractured ribs on Melody's left side. The emergency room doctors believed she had suffered a blunt trauma injury within the past several hours. Melody died shortly thereafter at Harborview Hospital in Seattle.
Dr. Richard Harruff, the forensic pathologist who performed Melody's autopsy, testified Melody had suffered the following injuries: (1) abdominal contusions; (2) lacerations to the liver and mesentery; (3) several fresh fractures on the left side of the ribs, some of which may have been caused by emergency surgery; and (4) several healing rib fractures about two weeks old. Dr. Harruff concluded (1) the cause of death was a blunt force injury to the abdomen, (2) the manner of death was homicide, and (3) the injuries were consistent with intentional trauma.
esters testified that just before Melody's third hospitalization, he performed CPR on her. Although he had been warned against it, he again performed CPR on Melody just before her final hospitalization. He compressed her stomach, squeezed her chest, and administered a Heimlich maneuver. Dr. James Alexander Johnston Ferris, a medical pathologist, testified Melody's injuries were consistent with the performance of CPR.
The State charged Myron Osei Esters with three alternative offenses: (1) homicide by abuse, (2) second degree intentional murder, and (3) second degree felony murder by means of second degree assault on a child. The jury found Esters not guilty of homicide by abuse and second degree intentional murder, but did find him guilty of second degree felony murder by means of second degree assault on a child. On appeal, Esters contends the jury instruction defining "assault" as "an intentional touching or striking of another person that is harmful," *fn1 erroneously omitted the element of intent to harm. Esters also claims the trial court abused its discretion by denying his motions for mistrial based on (1) the testimony of two witnesses who said he did not manifest grief after Melody's death, and (2) a question asking why he did not tell detectives he had attempted CPR on Melody.
The State must prove every element of a crime beyond a reasonable doubt. State v. Eastmond, 129 Wash. 2d 497, 503, 919 P.2d 577 (1996). The omission of an essential element of a crime is reversible error. Eastmond, 129 Wash. 2d at 503. We view the jury instructions as a whole to determine if an essential element is missing. State v. Pirtle, 127 Wash. 2d 628, 656, 904 P.2d 245 (1995), cert. denied, 135 L. Ed. 2d 1084, 116 S. Ct. 2568 (1996).
The jury found Esters had committed second degree assault on a child, which incorporates the elements of second degree assault. RCW 9A.36.130(1)(a). A person is guilty of second degree assault if he or she "intentionally assaults another and thereby recklessly inflicts substantial bodily harm." RCW 9A.36.021(1)(a). The jury was instructed "assault" meant "an intentional touching or striking of another person that is harmful," but the instruction omitted that the touching be with intent to cause harm. Esters claims the instruction relieved the State of proving he had acted with the intent to harm ...