2014 Opinion No. 80
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
Judgment of conviction for two counts of felony injury to a child, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Reed P. Anderson argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
SCHWARTZMAN, Judge Pro Tem. Judge GRATTON and Judge MELANSON CONCUR.
SCHWARTZMAN, Judge Pro Tem
Anthony Edward Ortega was convicted of two counts of felony injury to a child. He argues that the court erred in two respects. First, he claims that the court impermissibly allowed the State to present evidence of his prior abusive conduct toward very young children. Second, he claims that the court erred by failing to instruct the jury that reasonable parenting efforts could not be the basis of an injury to a child charge. We affirm the judgment of conviction.
Ortega was charged with two counts of felony injury to a child, Idaho Code § 18-1501(1). The first charge alleged that Ortega caused his two-year-old child, A.O., to suffer a spiral fracture of the humerus bone; the second alleged that Ortega struck or hit the child on his buttocks, abdomen, and chest.
Before trial, the State filed notice of its intent to adduce evidence of Ortega's prior abusive parenting to " rebut any claim of accidental touching." At a pretrial conference, the parties made clear that they disputed the admissibility of that evidence and the State indicated that it intended to introduce additional prior bad act evidence beyond those acts described in its motion. The court decided that the evidence described in the State's initial filing was admissible and scheduled another pretrial hearing to address the additional evidence. In response, Ortega filed a motion to reconsider, arguing that the evidence was not relevant and was prejudicial. The court considered the admissibility of all the prior bad act evidence at the second pretrial hearing. It ruled that the evidence was relevant because it could " establish
a pattern . . . that is relevant to the resolution of the issues in this case." It also ruled that the probative value of the evidence substantially outweighed any prejudicial effect. On these grounds, the court held that the evidence could be admitted.
The case proceeded to a jury trial. In opening statements, both the State and Ortega framed the case as a dispute over the cause of the child's injuries. The State asserted that Ortega was an impatient father who disciplined his two-year-old son very harshly, while Ortega maintained that the injuries resulted from accidents or other noncriminal causes.
The State called several witnesses whose testimony included Ortega's contemporaneous descriptions of how A.O. was injured. Each testified that Ortega claimed that the injury to the child's arm was accidental, resulting from the child falling or being accidentally dropped when being taken out of his car seat. The State attempted to rebut Ortega's account through medical testimony and by referring to Ortega's prior conduct.
Two physicians testified regarding the arm injury, the emergency room treating physician and the Medical Director of Children at Risk Evaluation Services (CARES). The treating physician testified that the spiral fracture was not a typical result of a fall because that injury usually indicates twisting. Moreover, a falling person, especially one who breaks his arm, usually strikes the ground with his palms down. A.O. had no injuries on his hands despite falling onto pavement. Finally, the physician observed an abrasion or contusion circling the child's arm, which would not have resulted from a fall. The CARES doctor testified that the child's arm injury was not consistent with a fall. Based upon these observations, the doctor concluded that:
The amount of force that [it] would have taken to cause that kind of fracture is more than if you were just picking your child up by under the arm or elbow during normal play or normal care.
The amount of force required to cause such an injury is enough that a reasonable person would know that they could harm the child.
The CARES doctor also testified regarding the injuries to the child's buttocks. He noted that toddlers frequently bruise while they learn to walk and that the minor bruising on the child's shins was typical. However, a toddler's exhibiting bruising of the buttocks and chest is not typical. Normal play or toddler activities would not cause the extensive bruising on the child's buttocks. For example, a toddler scooting down a flight of stairs on his buttocks, even roughly, would not result in that bruising. Moreover, the physician opined that the bruising looked patterned. ...