NO. 93-167

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

THE STATE OF MONTANA,

Plaintiff and

-vRespondent,

GREGORY JOHN MERGENTHALER,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis & Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender, Helena,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Elizabeth

Griffing, Assistant Attorney General, Helena,

Montana: Mike McGrath, Lewis and Clark County

Attorney, Carolyn Clemens, Deputy County Attorney,

Helena, Montana

Submitted on Briefs: December 22, 1993

Decided: January 20, 1994

Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Gregory Mergenthaler (Mergenthaler) appeals from a Judgment

and Commitment of the First Judicial District Court, Lewis and

Clark County, based on a jury verdict convicting him of negligent

homicide. We affirm.

The issues on appeal are as follows:

1 . Did the District Court err in denying Mergenthaler's

motion to dismiss at the conclusion of the State's case?

2 . Did the District Court err in allowing autopsy slides and

a photograph of the victim, while alive, to be presented to the

jury?

Mergenthaler began dating Donna Weinzetl (Donna) in November,

1991. Donna was the mother of Ashley Weinzetl (Ashley), who was

born on November 29, 1990. Mergenthaler was convicted of negligent

homicide in connection with the death of thirteen-month old Ashley

on January 23, 1992.

A few weeks prior to her death, on the evening of January 12,

1992, Ashley was hospitalized because of the flu, which caused

diarrhea and dehydration. She also suffered a febrile seizure, a

common seizure which occurs in young children suffering from a

fever or febrile illness. At the time she was hospitalized, she

was placed on an I.V. and tested for meningitis. Dr. John

Reynolds, the admitting doctor, saw no bruises or other injuries on

Ashley. Dr. Reynolds testified that Ashley responded to treatment

well, and by the morning of January 13, 1992, appeared to be a

"nice normal happy baby." Ashley stayed in the hospital until

2
January 15, 1992, in order to allow Dr. Reynolds time to complete

testing of her urine, blood, and spinal fluids. When she was

discharged, Dr. Reynolds instructed Donna to feed the child

Pedialyte, an oral electrolyte solution, and prescribed amoxicillin

for an ear infection.

On January 18, 1992, Carole Keele, Donna's mother, babysat

Ashley while Donna worked. Ms. Keele testified that Ashley ate

normally that day. When Ms. Keele bathed Ashley, she noticed that

Ashley had a bruise on her foot from where the I.V. had been

placed, but testified that there were no other bruises on Ashley.

She also testified that Ashley did not appear to be ill that day.

The next day, Ashley ate a normal breakfast, then Donna and

Ashley attended church. Church members testified at trial that

Ashley was not as active that day as she usually was, but that she

appeared healthy and had no bruises or marks on her face. After

church, Ashley ate lunch, took a nap, and played in the afternoon.

Later that afternoon, Mergenthaler called Donna and said he

would come and pick Donna and Ashley up to visit at Mergenthaler's

house. A short time after arriving there, Donna went to the

grocery store to pick up fixings for dinner, and to rent a video.

When Donna left the house, Ashley was asleep on top of

Mergenthaler's bed. When Donna returned, Mergenthaler was holding

Ashley and she was undressed except for a diaper. Mergenthaler

told Donna that Ashley had vomited on the sheets and that he put

her on the couch to run a bath. When he came out of the bathroom,

Ashley was lying on the floor; Mergenthaler told Donna that Ashley

3
fell off the couch. At this time, Donna noticed that Ashley had a

bruise on the right side of her head.

Mergenthaler did not like what Donna had purchased for dinner,

so she went back to the store and left Ashley with him. She also

went to her apartment to get pajamas for Ashley. Upon her return

to Mergenthaler's apartment, she prepared dinner and they watched

the video. She also fed Ashley, who then went to sleep around 9:00

p.m. Donna then made another trip to her apartment to pick up

blankets for Ashley. Upon her return, she decided to stay the

night at Mergenthaler's apartment, so she returned to her apartment

a last time to pick up her work clothes and curling iron.

Mergenthaler, Donna, and Ashley were sleeping in the same bed

and, between 10:00 and 11:OO p.m., Ashley woke up crying and

appeared to be having trouble breathing. Donna got up and dressed

herself and Ashley in order to go to the emergency room. At that

time, Donna noticed the bruises on Ashley's head were swollen.

Mergenthaler asked to hold Ashley, which Donna allowed him to do.

Within about five minutes, Ashley began breathing normally. At

that time, Mergenthaler convinced Donna not to take Ashley to the

emergency room.

During that night, Mergenthaler and Donna kept checking on

Ashley, shining a small flashlight into her eyes every hour.

Ashley slept through the night and her breathing appeared normal.

At 4:30 a.m. on January 20, 1992, Donna awoke and got ready

for work. She left Mergenthaler's house at 5:30 a.m. and

discovered her car would not start. Mergenthaler assisted her in

4
getting the car started, then Donna left for work, leaving Ashley

in Mergenthaler's care.

Mergenthaler testified that he went back to bed after helping

Donna start her car, but awoke around 6:30 a.m. when Ashley began

crying. Mergenthaler then changed her diaper and tried to give her

a bottle, which she refused. He testified that he did feed her

three jars of baby food and that she then "passed out, just fell

asleep again." Mergenthaler then watched television and later

realized he had not given Ashley the amoxicillin. When he went to

give her the medicine, she was barely breathing. Mergenthaler

testified that he tried to wake her up by shaking and slapping her

and that he tried to pry her mouth open but her jaw was locked.

When he was unable to get Ashley to respond, Mergenthaler

called his mother, who told him to call Donna. At about 9:00 a.m.,

Donna received a telephone call from Mergenthaler, telling her that

Ashley's jaw was locked and that her body was limp. Donna

testified that she told Mergenthaler to call 911, but he denies

this statement. Donna called her doctor's office and the emergency

room, then called Mergenthaler's apartment. When Mergenthaler

answered the telephone, he told Donna the paramedics were there.

Donna went to the hospital and, upon her arrival, found that

Ashley was in a trauma unit in critical condition. She was in a

coma and unresponsive, with severe retinal hemorrhages. A CT scan

showed that there were many areas of free bleeding within her head,

including subarachnoid bleeding (at the bottom of the brain) and

subdural bleeding (between the covering of the brain and the brain

5
itself). The attending physician, Dr. Reynolds, diagnosed her

condition as "whiplash shaken infant syndrome." Dr. Reynolds

testified that he had never seen a child injured in that manner

from revival efforts, and further testified that Ashley's injuries

were not consistent with a fall from a couch. Dr. Reynolds also

testified that Ashley could not have eaten breakfast the morning of

January 20, 1992, let alone have eaten three jars of baby food. He

believed the injuries had likely occurred within the previous

twenty-four to forty-eight hours.

That afternoon, Ashley was flown to the hospital in Great

Falls for specialized care. Dr. Ruggerie, a specialist in

pediatric critical care, testified that, when Ashley arrived at the

Great Falls hospital, his working diagnosis was child abuse. Dr.

Ruggerie testified that Ashley's brain was so swollen that it had

herniated, pushing the brain out of the skull through the base of

the skull. He found her eyes dilated with significant retinal

bleeding, with one retina partially detached.

Dr. Ruggerie noted significant external head injuries,

including swelling on the right side of her face and bruises on

both sides of the face and over the ears. Ashley also had small

pinpoint bruising around the base of her head. Dr. Ruggerie agreed

that the injuries were consistent with those of a baby who had been

severely shaken. He also opined that the injuries had occurred

within twenty-four hours of presentation.

Ashley died on January 23, 1992. Dr. Henneford performed an

autopsy, which showed that she had died from swelling of the brain

6
and bleeding within the cranial vault. The autopsy revealed that

Ashley had severe bleeding within the brain, hemorrhaging of her

retina, and one partially detached retina. Dr. Henneford testified

that the hemorrhaging and bleeding were consistent with a "shaken

baby episode." He did not believe that the injuries could be the

result of a fall from a couch or from revival efforts. Dr.

Henneford believed the injuries inflicted on Ashley occurred three

to four days before her death on January 23, 1992.

All three doctors who testified at trial agreed that Ashley's

head injuries could not have occurred through a fall from the

couch. They also agreed that the health care providers could not

have caused the significant bruising, nor could the bruising have

occurred through choking or retching. Dr. Reynolds and Dr.

Ruggerie confirmed that the injuries had no relation to the flu

symptoms Ashley had earlier in the week, and agreed that none of

the injuries were indicative of a febrile seizure.

On January 28, 1992, Mergenthaler was charged by information

with negligent homicide. The above evidence was presented at a

trial held August 31, 1992 through September 3, 1992, and the jury

returned a guilty verdict. After a hearing on December 7, 1992,

Mergenthaler was sentenced to ten years in prison and was ordered

to pay restitution for all of Ashley's medical and funeral expenses

as a condition of parole. From that Judgment and Commitment,

Mergenthaler appeals.

I - MOTION TO DISMISS

Mergenthaler contends that the District Court erred in denying

7
his motion to dismiss the information at the conclusion of the

State's case. Essentially, he argues that there was insufficient

evidence to support the charge that he is the person who inflicted

the injuries on Ashley. We disagree.

When the issue on appeal is whether there was sufficient

evidence to support a jury verdict, the standard of review is

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State

v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150. A

directed verdict of acquittal is appropriate only when there is no

evidence to support a guilty verdict. State v. Haskins (1992), 255

Mont. 202, 210, 841 P.2d 542, 547.

Mergenthaler was charged with negligent homicide, which is

defined as negligently causing the death of another human being.

Section 45-5-104, MCA (1991). "Negligently" is defined as follows:

a person acts negligently with respect to a result or to

a circumstance described by a statute defining an offense

when he consciously disregards a risk that the result

will occur or that the circumstance exists or when he

disregards a risk of which he should be aware that the

result will occur or that the circumstance exists. The

risk must be of such a nature and degree that to

disregard it involves a gross deviation from the standard

of conduct that a reasonable person would observe in the

actor's situation. "Gross deviation" means a deviation

that is considerably greater than lack of ordinary care.

. . .

Section 45-2-101(37), MCA (1991). Thus, in order to find

Mergenthaler guilty of negligent homicide, the jury had to find

that he grossly deviated from the standard of ordinary care in his

conduct with Ashley. After reviewing the entire record in this

8
case in the light most favorable to the State, we conclude that the

State introduced sufficient evidence to establish all the essential

elements of the crime beyond a reasonable doubt.

Mergenthaler himself admitted that he shook and slapped

Ashley, allegedly in an attempt to get her breathing. In addition,

strong evidence was presented to show that Mergenthaler had

severely injured Ashley while Donna was gone. All the doctors who

testified at trial concluded that Ashley's head injuries could not

have occurred through a fall from the couch, as Mergenthaler

claimed. In addition, all the doctors agreed that the injuries

could not have occurred when Ashley vomited or if she was choking

or retching. Rather, the evidence showed that Ashley had been

severely shaken and that this shaking caused her brain to swell and

ultimately caused her death.

It is clear .that circumstantial evidence may be used to prove

any element of an offense. State v. Lynn (1990), 243 Mont. 430,

435, 795 P.2d 429, 433. All the evidence presented at trial

indicated that Ashley was normal and healthy when she went to

Mergenthaler's apartment on January 19, 1992. The evidence

indicated that the injuries were acute and occurred on that day.

Mergenthaler had custody and control over Ashley during the period

of time when the bruises first appeared on her face. The jury

could readily infer that an incident occurred where Ashley was

injured during the time Donna was away from Mergenthaler's

apartment. While Mergenthaler could not be compelled to testify,

he chose to do so, but did not offer any rational explanation for

9
Ashley's severe injuries incurred while she was in his care.

In fact, Merqenthaler's testimony at trial was discredited by

the State's evidence. He claimed that Ashley had fallen off the

couch on January 19, 1992, and likely received some facial bruises

then. However, all the doctors who testified concluded that the

bruises on Ashley's face could not have been caused by falling off

the couch. In addition, Merqenthaler claimed that Ashley ate three

jars of baby food on January 20, 1992. However, Dr. Reynolds

testified that there was no possible way Ashley could have eaten

that amount of food, given her condition at the time she was

admitted to the hospital.

We conclude that the State provided a significant amount of

evidence upon which a rational trier of fact could find

Mergenthaler guilty beyond a reasonable doubt. Therefore, we hold

that the District Court properly denied Merqenthaler's motion to

dismiss at the conclusion of the State's case.

II - AUTOPSY SLIDES AND PHOTOGRAPH

Mergenthaler contends that the District Court erred in

allowing the State to present autopsy slides and a photograph of

Ashley, while alive, to the jury. We disagree.

Our standard of review relating to discretionary trial court

rulings is whether the trial court abused its discretion. Steer,

Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601,

603-04.

At trial, Dr. Henneford, the physician who performed the

autopsy on Ashley, referred to slides taken during the autopsy when

10
he was explaining the nature of the injuries to the jury. It is

well established that the trial courts have wide discretion in

admitting photographs. State v. Warnick (1983), 202 Mont. 120,

127, 656 P.2d 190, 194. Photographs are admissible for the purpose

of explaining and applying the evidence and for assisting the court

and the jury in understanding the case. State v. Johnson (1986),

221 Mont. 503, 515, 719 P.2d 1248, 1256. When considering whether

photographs should be admitted as evidence at trial, the court must

determine whether their probative value is substantially outweighed

by the danger of unfair prejudice. State v. Gollehon (Mont. 1993),

_ P.2d me....-, -.I 50 St. Rep. 1564, 1567.

In Gollehon, the State introduced twenty autopsy photographs

taken by the medical examiner. The defendant contended that the

photographs had little probative value and should have been

excluded. The photographs were only exhibited during the medical

examiner's testimony, and the jury was not allowed to take the

photographs into deliberations. We held that, although the

photographs depicted the brutality and viciousness of the crimes

committed, they were admissible. We stated that we did not believe

the photographs would arouse the jurors' passions any more than

other evidence of the defendant's conduct. "We will not demand

that a trial be sanitized to the point that important and probative

evidence must be excluded.t' Gollehon, 50 St. Rep. at 1567.

As in Gollehon, the autopsy slides here were only exhibited

during Dr. Henneford's testimony for demonstrative purposes. The

State did not introduce the slides into evidence; therefore, the

11
jury was not allowed to take the slides into deliberations. In

addition, the District Court only allowed a few to be shown during

Dr. Henneford's testimony. Dr. Henneford testified that the slides

were helpful in describing the procedures he used, and referred to

the slides to describe the nature and extent of Ashley's injuries

and to show that her injuries could not have occurred through

choking, gagging, or as the result of a fall or febrile seizure.

We hold that the autopsy slides provided important and probative

evidence in explaining to the jury how and why Ashley died, and

thus were properly used for demonstrative purposes.

The State also introduced a photograph of Ashley when she was

alive. Mergenthaler contends that this was prejudicial error.

Again, after reviewing the transcript of trial proceedings, we find

that the District Court carefully reviewed various in-life

photographs in chambers and rejected a number of photographs,

including one of Ashley sitting on Donna's lap. The District Court

allowed one photograph of Ashley, wearing a snowsuit, sitting on

the back of a pickup truck, taken a few weeks before her death, to

be introduced to the jury to show who the victim was and what she

looked like.

The child's size, age, condition, vulnerability, and health

were central issues in this case. We have previously held that

photographs are admissible if they are relevant to describe a

person, place, or thing involved in the case. State v. Mayes

(1992), 251 Mont. 358, 371, 825 P.2d 1196, 1205.

In this case, the State maintains that the photograph was

12
relevant to show the jury how Ashley looked and what her health was

a few weeks prior to the homicide. The photograph shows a happy,

healthy, thirteen-month old child, taken a few weeks prior to her

death. There was nothing in particular about this photograph that

would inflame the passions or emotions of the jury, and

Mergenthaler cannot show any prejudice. See Maves, 825 P.2d at

1205. We hold that the District Court did not abuse its discretion

in allowing the State to introduce the photograph of Ashley.

Affirmed.

We Concur:

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January 20, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

WILLIAM F. HOOKS

Appellate Defender

P.O. Box 200145, Captitol Station

Helena, MT 59620-0145

HON. JOSEPH P. MAZUREK, ATTORNEY GENERAL

Elizabeth Griffmg, Assistant

215 N. Sanders, Justice Building

Helena, MT 59620

HON. JEFFREY M. SHERLOCK

District Judge

228 Broadway, Dept 3

Helena, MT 59623

MIKE MC GRATH, COUNTY ATTORNEY

228 Broadway

Helena, MT 59623

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA