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State v. Mena

February 18, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
ROBERTO V. MENA, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-06144-1. Date filed: 05/08/95. Judge signing: Hon. Donald Haley.

PER CURIAM. Roberto Mena appeals a judgment and sentence entered following his jury conviction for assault in the second degree. He contends (1) he was unduly prejudiced by the improper admission of evidence of prior injuries to the infant victim and (2) the court had no authority to order him to complete treatment and classes as a condition of community placement. We find no error and affirm.

FACTS

Mena was charged with inflicting injuries, including a broken arm, to his 7-week old son, Jaime. Mena and the baby's mother, Alissa Beasley, testified they took turns each night taking care of the baby, with the other parent sleeping in the living room. Mena testified that on the night in question, he placed the baby as usual in a bassinet on the bed next to him. He awoke about 5:30 am to find the baby crying on the floor with the bassinet upside down on top of him and his 18-month-old sister standing nearby. He denied assaulting the baby. The parents testified they initially checked the baby and thought he was uninjured.

Later that morning, however, Beasley noticed Jaime was not moving his arm and cried when she moved it. She took the baby to a pediatrician, who took X-rays and discovered that the baby had a recently fractured left humerus and older, healing fractures of the clavicle and one leg. He notified Child Protective Services and told the parents the injuries were not consistent with a fall from a bed but were caused by someone.

Two physicians from Children's Medical Center also testified to the current injury plus several other fractures of the clavicle, ribs, and tibia. They testified that in their opinion, the injuries resulted from child abuse, not a fall from a bed. The defense cross-examined the two physicians on the possibility that the injuries could have been caused by bone disease. They testified that the child had no symptoms of bone disease.

Before trial Mena moved to exclude testimony regarding prior injuries to the baby. The trial court denied the motion, ruling that State v. Bell, 10 Wash. App. 957, 521 P.2d 70, review denied, 84 Wash. 2d 1006 (1974), was controlling.

After the jury returned a verdict of guilty, the court imposed an exceptional sentence and one year of community placement, including the following conditions:

9. Engage in a mental health evaluation from a qualified provider and complete all treatment recommendations, as approved by the Community Corrections Officer.

10. Complete an approved parenting class and provide proof of compliance to his supervising Community Corrections Officer.

11. Enter and complete an approved anger management class and provide proof of compliance to his supervising Community Corrections Officer.

DECISION

Mena first contends the trial court erred in admitting evidence of the prior injuries under ER 404(b). He contends the evidence was not admissible on the issue of lack of accident because he did not assert a defense of accident. This contention is without merit.

The trial court's decision whether to admit such evidence is within the sound discretion of the trial court and will be reversed only upon a showing of manifest abuse of the discretion. State v. Dennison, 115 Wash. 2d 609, 628, 801 P.2d 193 (1990). Where the defendant claims the child's injuries are the result of an accident, evidence of prior injuries to the child is admissible to prove the State's case of intentional conduct. State v. Mercer, 34 Wash. App. 654, 663 P.2d 857, review denied, 100 Wash. 2d 1005 (1983); State v. Terry, 10 Wash. App. 874, 520 P.2d 1397 (1974); State v. Bell, 10 Wash. App. at 960.

Mena was charged with intentionally assaulting the child. He contends his defense was general denial, i.e., he did not inflict the injuries at all, not that he hurt the child by accident. This is an incorrect assessment of the defense of accident in such cases. State v. Bell is on point. In that case the child victim died while in the care of the defendant. His defense, as in the instant case, was that the child was injured by falling from her crib. This court held that evidence of prior injuries was admissible to show absence of accident. State v. Bell, 10 Wash. App. at 961. See also State v. ...


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