| People v Tinkler |
| 2013 NY Slip Op 02425 [105 AD3d 1140] |
| April 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnA. Tinkler, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered July 15, 2010, upon a verdict convicting defendant of the crimesof manslaughter in the second degree and endangering the welfare of a child.
The victim, who was the three-year-old daughter of defendant's girlfriend, died as aresult of internal bleeding from a significant tear in her mesentery allegedly caused byblunt force trauma to her abdomen. The injury occurred while the victim and her foursiblings[FN*]were in defendant's care. Defendant was eventually indicted on charges of murder in thesecond degree, manslaughter in the second degree and endangering the welfare of achild. A jury acquitted him of the top count, but found him guilty of manslaughter in thesecond degree and endangering the welfare of a child. County Court sentenced him toconcurrent prison terms of 5 to 15 years for manslaughter and one year for endangeringthe welfare of a child. Defendant appeals.[*2]
Defendant contends that his manslaughterconviction was against the weight of the evidence. Since a different verdict would nothave been unreasonable, we "must, like the trier of fact below, 'weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony' " (People v Bleakley, 69 NY2d490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62[1943]). "Great deference is accorded to the fact-finder's opportunity to view thewitnesses, hear the testimony and observe demeanor" (People v Bleakley, 69NY2d at 495; accord People vRomero, 7 NY3d 633, 644 [2006]).
Police and emergency personnel who responded to the 911 call testified thatdefendant told them that, shortly before he called 911, the victim had fallen in the showerand bumped her head. He reportedly dried her off, but observed her lips changing colorand she was becoming unresponsive, prompting him to make the 911 call. Police and theemergency personnel who entered the apartment with defendant's permission notedseveral things that appeared inconsistent with defendant's version, including that thetowel with which he allegedly had dried the child had little dampness and the showerarea did not appear to have been recently used. They also noted that the child's body andhair were dry, unlike someone who had recently been in the shower. Individuals whoprovided initial emergency treatment to the victim related that her extremities had alreadycooled and her eyes were fixed and dilated, all indicating that she had becomeunresponsive much earlier than reported by defendant. Witnesses noted defendant's lackof emotion and failure to inquire about the status of the child. Bruises were observed onthe victim's abdomen area and lower back. Defendant's girlfriend testified that the childwas fine during the morning before she left for work and did not have bruises exceptnormal ones on her shins from child's play.
A police officer testified about his conversation with defendant on the date of thechild's death and the following day. Defendant provided a detailed written statement,which was received into evidence. Defendant stated that his girlfriend left for workaround noon, leaving him in charge of the five children. They started lunch at about 2:30p.m., the victim became "whiny" and went for a nap around 3:00 p.m. She threw-upwhile napping, resulting in her going to take a shower at about 4:15 p.m. He left her inthe shower while watching television and, about five minutes later, he heard a "thud."She stated to him that she had hit her head, he observed a "half-dollar" size bump on herhead and, as he started to dry her off, she was "wobbly." He left her momentarily and,when he returned, she was lying on the floor and unresponsive, resulting in him calling911. The officer who took this statement from defendant testified that the 911 call wasnot received until 4:49 p.m. The officer further indicated that defendant later became asuspect once the autopsy revealed that the child had not died from head trauma, but frominternal injuries caused by blunt force trauma.
Four physicians testified, three called by the People and one by defendant. Thecounty medical examiner who performed the autopsy stated that he found no bumps orbruises on the child's head consistent with falling in a shower. He testified that she hadfresh bruises on her torso that displayed patterning from a device or object contacting herbody. He believed that the bruises were not consistent with typical child's play, but wereindicative of abuse. There was a significant quantity of blood in her abdominal cavitythat he stated was caused by a large tear in her mesentery. He opined that she likely diedwithin half an hour of the injury. The emergency room physician who treated the victimfound no notable head injuries, but did observe bruising near her bellybutton and on herback that he stated were not consistent with normal child's play. Although he stated thatthe injuries were consistent with intentional trauma, he acknowledged on [*3]cross-examination that they could have been causedunintentionally. The People also presented a professor of pediatrics from BrownUniversity Medical School, who had extensive experience treating children. She testifiedthat a child with a mesentery tear as sustained by the victim would be in obvious pain,and unable to eat. She characterized the victim's injury as the worst mesenteric injury shehad ever seen and explained that it would take significant impact to cause this type ofinjury.
The physician called as an expert by defendant testified that the bruises on thevictim's body could have been caused by any number of things, including punching,blunt impact, another child kicking while on a swing, and walking into something. Heopined that the injury could have occurred as much as two to four hours before death andthat, after the initial blow, she might not have had pain. He noted bruises on her headconsistent with a fall in a shower. Defendant also testified and denied hitting or hurtingthe victim in any fashion. He added details not included in his statement to police,including that when he called the children inside for lunch, he heard thumps on the stairsand found the victim on her hands and knees from a fall.
The proof was circumstantial, and conflicting evidence was presented on some keypoints during the course of the lengthy trial with many witnesses. The jury made acredibility determination in declining to accept defendant's version of events. Thetestimony of the police and other emergency personnel, together with the particularlyimportant medical proof presented by the People, set forth an account at odds withdefendant's version and strongly supporting his culpability. After reviewing the evidencein the record in a neutral light, while deferring to the difficult credibility determinationsby the jury, we are unpersuaded that the verdict was against the weight of the evidence.
Defendant next argues that County Court's Molineux ruling warrantsreversal. County Court permitted the People to present evidence of other nonfatal injuriesrevealed in the victim's autopsy, as well as two instances of injuries to the child duringthe previous six months when defendant was the primary caregiver for the child."Although evidence of similar uncharged crimes is not admissible to prove a defendant'spropensity to commit the specific crime charged, such evidence is admissible if it isprobative of a legally relevant and material issue before the court and its probative valueexceeds the potential for prejudice resulting to the defendant" (People v Higgins, 12 AD3d775, 777 [2004] [internal quotation marks and citations omitted], lv denied 4NY3d 764 [2005]). It was apparent from defendant's statement to police that there wouldbe an issue as to whether the victim's injuries occurred as a result of an accident. Thisevidence was relevant to material issues, including the absence of an accident (see People v Wright, 81 AD3d1161, 1162 [2011], lv denied 17 NY3d 803 [2011]; People v Barreto, 64 AD3d1046, 1049 [2009], lv denied 13 NY3d 834 [2009]; People v Smith, 41 AD3d964, 965 [2007], lv denied 9 NY3d 881 [2007]; People v Wilcox,194 AD2d 820, 821 [1993]). County Court's weighing of the probative value against thepotential for prejudice could have been more detailed, but its decision to permit thisproof to be used at trial did not constitute an abuse of discretion requiring reversal (see People v Dorm, 12 NY3d16, 19 [2009]). Further, limiting instructions were given when the proof waspresented during the trial and again in the jury's charge (see People v Reid, 97 AD3d1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Edmunds, 21 AD3d578, 580 [2005], lv denied 5 NY3d 828 [2005]).
In its general instructions to the jury, County Court included a charge regarding awitness testifying to a fact that the witness omitted at a prior time when it would havebeen reasonable and logical to have stated the fact (see CJI2d[NY] Credibility ofWitnesses[*4][Inconsistent Statements]). Defendantcontends that this constituted error. Defendant had given a detailed voluntary statementto police regarding the pertinent events surrounding the victim's death. He did notinclude in that statement an account of the victim purportedly falling on the stairs whilecoming to eat lunch, but he testified regarding such event at trial. Since it would bereasonable to expect defendant to mention all potential injuries sustained by the victimwhile in his care that day, including this charge did not constitute reversible error (seePeople v Savage, 50 NY2d 673, 679 [1980]; People v Bornholdt, 33 NY2d75, 88-89 [1973]; People v Struss, 228 AD2d 711, 713 [1996], lv denied89 NY2d 867 [1996]; see also People v Wise, 46 NY2d 321, 326-327 [1978]).
Although defendant received the maximum sentence and had no criminal record, wefind no extraordinary circumstances or an abuse of discretion meriting a reduction of hissentence in light of the nature of the crime perpetrated upon a young child entrusted tohis care (see People v Smith, 41 AD3d at 967). Nor was it an abuse of discretionfor County Court to include the two biological children of defendant in its order ofprotection (see People v Yu-JenChang, 92 AD3d 1132, 1136 [2012]).
Rose, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The other children'sages were one, five, seven and nine. The youngest was defendant's child with hisgirlfriend. His girlfriend was also pregnant at the time with the couple's second child.