Not to be Published
MEMORANDUM OPINION OF THE COURT
Following a jury trial in the Lee Circuit Court, Billy R. Hollan, Jr. was convicted of the wanton murder of his infant daughter, Hay lei. Hollan received twenty years imprisonment and now appeals as a matter of right. The sole issue on appeal is whether the trial court erred when it denied Hollan's motions for a directed verdict based on insufficient evidence of wanton murder. Finding no error, we affirm Hollan's conviction.
RELEVANT FACTS
On April 24, 2008, at about 11:00 a.m., Hollan picked up his four month-old daughter, Haylei Hollan, from her step-grandfather's house and took her home to care for her while Haylei's mother was at school. Hollan was the only person with Haylei in the hours before her death. In his recorded statement to police, Hollan gave varying accounts of exactly vhat occurred and admitted to initially lying to the police. Hollan said Haylei began to cry and, in an effort to quiet her, he held her "pretty tight," vith her head in the crook of his right elbow, his right arm under her back, and his right hand supporting her bottom. He placed his left hand upside-down over her mouth, with his pinkie touching under her nose, but said he left room for her to breathe. Hollan bounced Haylei in his arms and held her in this position until she stopped crying. He claimed he later gave her a bottle and they fell asleep together on the couch or the bed. When he awoke twenty or thirty minutes later, Haylei was blue, cold to the touch, had milk coming out of her nose and was not breathing. Hollan took her to the neighbor's apartment to get help but resuscitation efforts by bystanders and the paramedics were to no avail.
The autopsy performed by Dr. Jennifer Shott, then the state medical examiner for the Commonwealth of Kentucky, revealed abrasions on both sides of the posterior neck, intramuscular hemorrhaging along the back of the spine, and hemorrhaging of the soft tissue at the front of the neck. Dr. Shott opined that the intramuscular and soft tissue hemorrhaging were blunt force injuries that could have been caused by a blow or being held too tightly. Dr. Shott also found petechial hemorrhaging around both eyes and on the upper cheeks. Petechia are the result of capillaries bursting because of increased pressure and are most commonly seen in asphyxial deaths and death due to overwhelming illness and sepsis. Haylei's labial frenulum, the tissue that connects the upper lip to the gum, was lacerated. Dr. Shott stated this perimortem blunt force injury was an unusual finding and could have been caused by someone tightly holding his or her hand over Haylei's mouth. There was also a small subgaleal hemorrhage, caused by blunt force trauma, and perimortem fractures of the right posterior ribs four, five and six. According to Dr. Shott and Dr. Emily Craig, a forensic anthropologist who consulted on the fractured ribs, the fractures could not have been caused by the two-finger CPR performed on Haylei. Dr. Shott stated it is extremely rare for infants to be injured during CPR and she had never seen a posterior rib fracture in an infant due to CPR. According to Dr. Craig, the only way a posterior rib fracture can occur in an infant is when there is pressure surrounding the entire rib cage.
Dr. Shott ruled out the possibility that Haylei choked to death on her formula because there was no evidence of milk in the lungs or airways and Dr. Shott had never heard of anyone fatally choking on milk. In addition, it is common to see liquid emerge from the nose or mouth at the time of death. Dr. Shott also ruled out overheating and SIDS (Sudden Infant Death Syndrome), also known as SUID (Sudden Unexplained Infant Death) or SUDI (Sudden Unexplained Death in Infants), as a cause of death. If Haylei had died from overheating she would not have been cold to the touch and if she had died from SIDS there would be no findings of other injuries. Dr. Shott considered and discarded caregiver overlay due to co-sleeping as the cause of death because it was inconsistent with the blunt force injuries and in that type of death there is usually blanching around the mouth, which was not present here. Finally, Dr. Shott concluded the microscopic pneumonia found in Haylei's lungs did not contribute to her death because it was extremely early pneumonia that probably would not have been symptomatic. Dr. Shott determined Haylei died from smothering and strangulation or compression of her neck.
Defense expert Dr. Janice Ophoven reached a different conclusion. The only findings she considered to be of consequence were the lacerated labial frenulum, the fractured posterior ribs and the petechial hemorrhaging. Dr. Ophoven disagreed with Dr. Shott's conclusion that the lacerated labial frenulum occurred perimortem and could have been caused by someone placing their hand over Haylei's mouth. In that situation, Dr. Ophoven testified, there would be blood or pus in the tissue, and because there was neither here, the laceration must have occurred postmortem. According to Dr. Ophoven, the postmortem laceration of the labial frenulum could have been caused by CPR. Similarly, Dr. Ophoven disagreed with Dr. Craig's conclusion that the posterior rib fractures could only be caused by circumferential pressure on the rib cage. Dr. Ophoven stated newer research indicates that CPR done on a soft surface, such as the couch on which Haylei was placed, increases the leveraging of the ribs and can cause posterior rib fractures in infants. Dr. Ophoven opined the most likely cause of Haylei's death was caregiver overlay due to co-sleeping. According to Dr. Ophoven, the incidence of infant death by caregiver overlay is much higher than homicide.
The jury received instructions on all levels of homicide, including a murder instruction that separated intentional and wanton murder. The jury unanimously found Hollan guilty of wanton murder. As noted, Hollan received twenty years imprisonment and appeals as a matter of right. Ky. Const. § 110(2)(b). We turn now to the sole issue raised on appeal, whether the trial court erred when it denied Hollan's motion for a directed verdict based on insufficient evidence of wanton murder.
ANALYSIS
The appellate standard of review of a directed verdict is whether, viewing the evidence in a light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). This inquiry does not require the appellate court itself to believe the evidence established guilt beyond a reasonable doubt, nor does it permit the appellate court to assess the credibility of witnesses. Jackson, 443 U.S. at 318-19; Beaumont v. Commonwealth, 295 S.W.3d 60 (Ky. 2009). It is for the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.
The same test is used when the only evidence of guilt is circumstantial. Ratliffv. Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006). A jury may make reasonable inferences from circumstantial evidence, including inferences about knowledge and guilt. Dillingham v. Commonwealth, 995 S.W.2d 377 (Ky. 1999); McRay v. Commonwealth, 675 S.W.2d 397 (Ky. App. 1984). While circumstantial evidence "must do more than point the finger of suspicion," Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky. 1990), a conviction can be based on circumstantial evidence if, taking the evidence as a whole, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt, Graves v. Commonwealth, 17 S.W.Sd 858, 862 (Ky. 2000).
In order to convict Hollan of wanton murder, the Commonwealth had to prove that, under circumstances manifesting extreme indifference to human life, Hollan wantonly engaged in conduct that created a grave risk of death to Haylei and thereby caused her death. Kentucky Revised Statute (KRS) 507.020(1)(b). Hollan acted wantonly if he was aware of and consciously disregarded a substantial and unjustifiable risk that his conduct would kill Haylei. KRS 501.020(3). The risk must have been of such nature and degree that disregarding it constituted a gross deviation from how a reasonable person would have acted in that situation. Id.
As noted, though some of the evidence in this case was circumstantial and required the jury to draw inferences, this does not render the conviction improper. From Hollan's police statement and from the testimony of the Commonwealth's witnesses, a reasonable juror could conclude that, wanting to quiet the child, Hollan squeezed her torso forcibly enough to break her ribs and either clamped his hand over her mouth or applied pressure to her throat so as to suffocate or strangle her. Hollan argues that because there was no evidence of his state of mind, a jury could not find wantonness, i.e., that he was aware of and consciously disregarded a substantial and unjustifiable risk that his conduct would kill Haylei. However, a confession in which the defendant reveals his state of mind is not necessary for a conviction. The jury is permitted to make reasonable inferences, including inferences about the defendant's state of mind, from the act itself and the surrounding circumstances. See Commonwealth v. Suttles, 80 S.W.3d 424 (Ky. 2002). Squeezing a four month-old infant tightly and blocking her breathing create so obvious a risk of death that it was not unreasonable for the jury to conclude that Hollan, manifesting an extreme indifference to human life, wantonly engaged in conduct that caused Haylei's death.
Against this conclusion, Hollan points to Dr. Ophoven's testimony as providing a more probable account of Haylei's death. However, the Commonwealth is not required to "rule out every hypothesis except that of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 326. Where there is competing evidence as to cause and manner of death, the jury is entitled to weigh the conflicting evidence. Davis, 795 S.W.2d at 945 (quoting Murtaugh v. Commonwealth, 579 S.W.2d 619 (Ky. 1979)). It was entirely within the jury's province to evaluate the witnesses' credibility and determine the weight to lend their testimony. Potts v. Commonwealth, 172 S.W.3d 345 (Ky. 2005). We will not, on appellate review, "reevaluate the evidence or substitute its judgment of the credibility of the witnesses for that of the jury." Suttles, 80 S.W.Sd at 426. Because the evidence was sufficient to permit a reasonable jury to find Hollan guilty of wanton murder beyond a reasonable doubt, the trial court did not err by denying his motion for a directed verdict.
CONCLUSION
Viewing the evidence in a light most favorable to the Commonwealth, it was not unreasonable for the jury to find guilt beyond a reasonable doubt in this wanton murder case. For the foregoing reasons, the Judgment of the Lee Circuit Court is affirmed.
All sitting. All concur.
