UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
POK SIN BOWERS, DEFENDANT-APPELLANT.
No. 80-7794.
United States Court of Appeals, Fifth
Circuit.
September 2, 1981.
660 F.2d 527 (5th Cir. 1981)
William L. Kirby, II, Columbus, Ga.
(court-appointed), for defendant-appellant.
William Adams, Asst. U.S. Atty., Macon,
Ga., for plaintiff-appellee.
Appeal from the United States District
Court for the Middle District of Georgia.
Before TJOFLAT, FAY and HENDERSON, Circuit
Judges.
PER CURIAM:
Pok Sin Bowers was convicted, following a
jury trial in the district court, for cruelty to a child in violation
of the Georgia child abuse statute, Ga.Code Ann. § 26-2801(b) (1980),
as it applies to a federal reservation through the Assimilative Crimes
Act, 18 U.S.C. § 13 (1976). She appeals, asserting several grounds for
reversal. None has merit, and we therefore affirm.
The facts developed before the jury were
as follows. On the morning of March 26, 1980, Bowers, a resident of
Fort Benning, Georgia, went to the home of a neighbor, Mrs. Galliday,
and stated that she had struck her two and a half year old daughter,
Kimberly, and that Kimberly might be dead. Record, vol. 2 at 7.
According to Bowers, she struck Kimberly for wetting her pants, then
Kimberly somehow fell into an empty bathtub. The two women immediately
took Kimberly to the nearby Martin Army Hospital.
When Kimberly arrived at the hospital she
had no heart beat and was not breathing. Dr. Broughton, a
pediatrician, along with a cardiac arrest team and several other
physicians attempted for forty-five minutes to resuscitate the child
but were unsuccessful. Bowers told Dr. Broughton that she had been
having a problem with Kimberly’s bowel training and sometimes had
responded to the problem by inflicting physical punishment on the
child. Bowers admitted that earlier that day she had pushed Kimberly
into the empty bathtub for not having used the bathroom properly.
Dr. Broughton found multiple bruises on
Kimberly’s chest, arms and head which appeared to have been present
for a couple of weeks. Dr. Grant, a pathologist, performed an autopsy
which disclosed bruises on Kimberly’s scalp, face, chest, back, and
right lung, a scar on the inner surface of the lower lip, a fracture
of the left side of her skull, a broken collar bone, a small tear in
the liver and a lacerated heart which, the doctor concluded, was the
immediate cause of death.
Appellant claims, on appeal, that the
district judge committed reversible error in admitting, over her
objection, testimony of Dr. Broughton concerning the “battered child
syndrome.” Dr. Broughton testified that battered child syndrome is a
general term used to describe any kind of abuse or neglect to a child
in the first three years of his life; the syndrome may arise from
sexual, emotional, physical or nutritional abuse, and any resulting
injuries are usually inconsistent with the parent’s explanation of
them. Dr. Broughton opined that Kimberly had been suffering from
battered child syndrome, and that the nature of her injuries belied
the history given by her mother.
The court was well within its discretion
in allowing this testimony to come before the jury. Testimony
describing the battered child syndrome has been approved in several
state jurisdictions. See, e.g., State v. Wilkerson, 295 N.C.
559,247 S.E.2d 905 (1978); State v. Goblirsch, 309 Minn.
401,246 N.W.2d 12 (1976); People v. Henson, 33 N.Y.2d 63, 349
N.Y.S.2d657, 304 N.E.2d 358 (1973); People v. DeJesus, 71 Ill.
App.3d 235,27 Ill. Dec. 448, 389 N.E.2d 260 (1979); Ashford v.
State,603 P.2d 1162 (Okl. Cr. 1979); Commonwealth v. Labbe,373
N.E.2d 227 (Mass. App. 1978); People v. Jackson, 18 Cal.App.3d
504, 95Cal.Rptr. 919 (4th Dist. 1971). Proof that a child suffers from
the battered child syndrome may show that the parent’s explanation of
the child’s injuries is a fabrication. Henson,33 N.Y.2d at 74,
349 N.Y.S.2d 665, 304 N.E.2d at 364; Jackson,95 Cal.Rptr. at
921. Moreover, evidence that the victim was a battered child, coupled
with proof that the child was in the sole custody of the parent, may
well permit the jury to infer not only that the child’s injuries were
not accidental but that they occurred deliberately, at the hands of
the parent. Henson, 33N.Y.2d at 74, 349 N.Y.S.2d 665, 304
N.E.2d at 364.
Appellant next argues that the trial court
erred in sustaining the government’s objection to questions put to Dr.
Jack Raines regarding her intent to kill Kimberly. The trial court
ruled: You can ask him whether he thinks she intended to mistreat the
child on that date, but your question was did she intend to kill the
child. She is not charged with murder. You can ask him about the
question of intent as it relates to this case.
Record, vol. 2 at 158.
We fail to see how this line of
questioning was relevant to any issue in the case. Appellant was not
charged with murder; consequently, whether she intended to kill her
child was of no moment. Furthermore, we think the doctor’s opinion,
given his limited role as a court appointed psychiatrist, of
appellant’s intent when she abused her child on the fatal morning of
March26, 1980, would have been speculative, at best, and thus devoid
of probative value.
Appellant argues that the jury was unduly
prejudiced by the government’s introduction in evidence of a color
photograph of the child’s lacerated heart. The photograph was clearly
relevant. Under Fed.R.Evid. 403, however, the court may have been
required to exclude the evidence “if its probative value [was]substantially
outweighed by the danger of unfair prejudice.” The court’s decision to
allow the evidence, after striking this balance, is reversible error
only if we find that it was an abuse of discretion. United States
v. Authement, 607 F.2d 1129, 1131(5th Cir. 1979). To be sure, the
photograph had the potential to inflame the jury, but we consider it
no more inflammatory than photographs that portray the sort of death
suffered by the victim in this or any other case where the
circumstances surrounding death are at issue. United States v.
Kaiser, 545 F.2d 467, 476(5th Cir. 1977). The photograph, here,
was essential to the government’s case if it was to meet its burden of
showing that appellant brought cruel and excessive physical force to
bear on her child. We cannot say that the prejudice inherent in the
photograph substantially outweighed its probative value. We hasten to
add that the mere fact that appellant stipulated with the government
as to the cause of death did not preclude the government from offering
proof on that issue. United States v. Spletzer, 535 F.2d 950,
955 (5th Cir. 1976); Parr v. United States, 255 F.2d 86, 88
(5th Cir.), cert. denied, 358 U.S. 824,79 S.Ct. 40, 3 L.Ed.2d
64 (1958).
Appellant contends that the court’s final
charge to the jury was faulty in two respects. First, she complains
that the trial court refused to give her Requests to Charges Number
One and Three, record, vol. 1, at 21, 23, which went to the issue of
intent. Second, she claims that the trial court’s remark, “Only the
defendant really knows what her intent was,” record, vol. 2,at 169,
had the effect of shifting the burden of proof to her. The question
for us “is whether the court’s charge as a whole was a correct
statement of law.” United States v. Grote, 632 F.2d 387,391
(5th Cir. 1980), pet. for cert. filed, 49 U.S.L.W.3744 (1981).
Appellant’s first contention is meritless.
The trial court properly instructed the jury on the issues of intent.
The court stated:
Now, in this
case, as in all criminal cases, before you would authorized [sic] to
find the defendant guilty of the offense which has been charged
against her, it must appear that these two things are true: First,
that she did the thing with which she is charged. And second, that she
did the thing knowingly and willfully, and with intent to evade or to
violate the law which applies in such a situation. I charge you that a
person who knowingly does an act which the law forbids, intending with
bad purpose either to disobey or to disregard the law may be found to
act with criminal intent. An act is done knowingly if it is done
voluntarily, purposely and not simply because of mistake or
inadvertance or some other innocent reason.
Record, vol. 2, at 168-69. Contrary to
appellant’s assertion, the jury was informed that the crime charged
required both an act and intent. The court’s instruction concerning
how the jury was to determine intent was actually consistent with
appellant’s Request to Charge Three. The court explained that
appellant’s intent could be decided by “looking at all the
circumstances surrounding what was done . . .”in addition to
statements, acts or omissions,” which would aid [the jury] in
determining her state of mind.” Record, vol. 2, at 169-170.
Appellant’s second contention is likewise without merit. The court’s
statement that only appellant really knew her intent was merely an
effort by the court to advise the jury that “intent ordinarily may not
be proved directly, because there is no way of fathoming or
scrutinizing the operations of the human mind.” United States v.
Chiantese, 560 F.2d 1244, 1256 (5th Cir. 1977) (en banc), cert.
denied,441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1978), quoting
with approval shifted the burden of proof to appellant nor did it
deviate from our mandate in Chiantese and United States v. Lentz,
624 F.2d 1280, 1290 (5th Cir. 1980),cert. denied, 450 U.S. 995,
101 S.Ct. 1696, 68 L.Ed.2d 194(1981).
Appellant asserts that the court committed
reversible error in taking judicial notice that “Fort Benning,
Georgia, is on land which is property of the United States and is
under the jurisdiction of [the] United States.” Record, vol. 2, at
173,181. The alleged vice in this instruction is the court’s failure
to inform the jurors that they were not bound to accept the noticed
fact. Appellant cites Fed.R.Evid. 201(g), which states: In a criminal
case, the Court shall instruct the jury that it may, but is not
required to accept as conclusive any fact judicially noticed.
Rule 201 “governs only judicial notice of
adjudicative facts, “Fed.R.Evid. 201(a), and not legislative facts.
Consequently, appellant’s argument turns on the characterization of
the fact judicially noticed. The Eighth Circuit has observed that
Legislative facts are established truths, facts or pronouncements that
do not change from case to case but apply universally, while
adjudicative facts are those developed in a particular case.
United States v. Gould,
536 F.2d 216, 220 (8th Cir. 1976). The fact that Fort Benning is under
federal jurisdiction is a well established fact appropriate for
judicial notice. United States v. Benson, 495 F.2d 475, 481-82
(5th Cir.), cert. denied,419 U.S. 1035, 95 S.Ct. 519, 42
L.Ed.2d 310 (1974). Unlike an adjudicative fact, this fact does not
change from case to case but, instead, remains fixed. Consequently,
the court committed no error in failing to instruct the jury it could
disregard the judicially noticed fact.
Appellant’s final contention is that the
record is devoid of any evidence, circumstantial or direct,
establishing that the charged offense was committed within a federal
enclave; the trial court therefore lacked subject matter jurisdiction.
Although territorial jurisdiction and venue are essential elements of
any offense, this Circuit has held that territorial jurisdiction or
venue are not to be treated as essential elements in the sense that
they must be established by proof beyond a reasonable doubt. United
States v. White, 611 F.2d 531, 536 (5th Cir.), cert. denied,
446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980).Rather, venue,
i.e., the location of the criminal activity, need only be established
by a preponderance of the evidence. United States v. Luton, 486
F.2d 1021, 1023 (5th Cir.), cert. denied,417 U.S. 920, 94 S.Ct.
2626, 41 L.Ed.2d 225 (1974); Gov’t of Canal Zone v. Burjan, 596
F.2d 690, 694 (5th Cir. 1979).
Applying this standard of proof, we find
that the evidence was sufficient to show that appellant physically
abused her child within the confines of Fort Benning. Appellant
resided on that military reservation; her statements to Mrs. Galliday
and to Dr. Broughton indicated that the events that culminated in
Kimberly’s death took place there. These admissions were sufficient
for the jury to infer that the charged crime was committed where the
venue was laid, and that is all that was required. Luton, 486
at 1023.
We find nothing approaching reversible
error in this record; accordingly, the conviction is
AFFIRMED.
