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FRANK JOSEPH WETZ v. STATE OF MISSISSIPPI

FEBRUARY 25, 1987

FRANK JOSEPH WETZ
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Man's inhumanity to man is occasionally understandable even when illegal or unjustifiable, but his inhumanity to a child is beyond our capacity to fathom.

 Today's appeal is presented by one convicted of the battered murder of his seven month old daughter. Because the defendant was the only eyewitness to the child's death and because he argues strenuously a theory of accident, we have reviewed the record dispassionately and with great care, notwithstanding our visceral reaction to the death of this baby girl. Finding no error in the proceedings below, we affirm.

 II.

 Frank Joseph Wetz, Defendant below and Appellant here, was a seabee in the United States Navy, stationed in Gulfport, Mississippi. Wetz lived in an apartment with his girlfriend, Jodi Owens, and their seven month old daughter, Kristina Lynn Owens. On July 17, 1983, Kristina died under suspicious circumstances. On October 12, 1983, the Grand Jury for the First Judicial District of Harrison County returned an indictment charging Wetz with Kristina's murder. Miss. Code Ann. 97-3-19 (1)(a) (Supp. 1986).

 Wetz defended, urging that Kristina died as a result of an accidental drowning. *fn1 He testified that on the day in question, while Jodi was at work, he was babysitting Kristina. Wetz stated that he ran some water into the tub, placed Kristina on a sponge in the tub, then went into the kitchen to get a soda and a cleaning pad. When he returned, Wetz said he found Kristina turned on her side lodged between the sponge and the edge of the tub. Wetz testified that he immediately pulled Kristina from the tub and took her into the bedroom, placing her on the bed. He then tried to administer mouth-to-mouth resuscitation to no avail. Frightened, Wetz ran to his landlord's home and told his landlord to call an ambulance. Shortly thereafter an ambulance arrived and paramedics attempted life-saving maneuvers. They placed Kristina in an ambulance and took her to the emergency room at Memorial Hospital in Gulfport, where Dr. James Sheffield treated her. There Kristina died.

 During the prosecution's case-in-chief Wetz' landlord, Steven Baudier, testified that Wetz came to his home on July 17, 1983, requesting assistance in summoning an ambulance because his child had fallen in the tub. After calling the ambulance, Baudier went to Wetz' apartment, where he found Wetz administering mouth-to-mouth resuscitation to Kristina. Baudier attempted to assist Wetz by administering C.P.R. to Kristina. He testified that he saw the damp sponge in the tub, but saw no standing water and the plug was taken out.

 Pat Sullivan, a paramedic, testified that he received a call about a drowning on July 17, 1983, and he and his partner responded. When they arrived, Baudier and Wetz were performing C.P.R. on Kristina. Sullivan and his partner removed Kristina from the bed and placed her on the floor, administering advance life support to her. Although Sullivan had been informed that Kristina had drowned, he thought that there had been a head injury involved because of the bruises he observed on Kristina's head. He further testified that he went into the bathroom and saw the sponge in the tub but did not see any water.

 The other paramedics who treated Kristina were Gary Hargrove and Joey Holcomb. Hargrove testified that he saw no evidence that Kristina had drowned as he was treating her because there was no foam emanating from her mouth or nose, a finding that may be made with approximately 97 percent of all drowning victims. However, Hargrove testified that he could not deny that Kristina had drowned, but he saw no signs of drowning. Holcomb testified basically to the same events as did Hargrove and Sullivan.

 Police Officer Michael Ellis testified that he was called to Wetz' home to conduct an investigation after Kristina was taken to the hospital. He testified that he observed blood stains on the bed in the bedroom. In the bathroom, he saw a sponge in the tub and droplets of water on the floor, but none standing in the tub.

 Diane Lesley was the first officer at the scene on July 17. She testified that as she started toward the door, Wetz had his hands clasped together and yelled" Oh God, if you'd only give me another chance. "She went into the bathroom and noticed there was water on the floor making it entirely damp. There was also a damp sponge in the tub, but no standing water therein.

 Charles Rogers was an officer who participated in an investigation of the Wetz apartment. He testified that he

 found a baby blanket with small blood stains in the front room of the apartment. He also checked concrete slabs outside the home for blood stains, but found none.

 Steve Slote, another Gulfport police officer, participated in a search of the residence the day following Kristina's death. He testified that he found a white towel which appeared to be stained quite extensively with blood in a closet located next to the bathroom. On cross-examination, Slote acknowledged that there had been no laboratory test identifying the substance on the towel as blood.

 Slote also testified that Wetz had given him a statement on July 17, 1983, regarding the occurrence that day. Slote testified that Wetz said he had returned home from Camp Shelby on July 16, 1983. Because Jodi had gotten a job, Wetz was to babysit Kristina that day. After taking Jodi to work, and returning home, as he was attempting to unlock the door to his apartment, Kristina fell out of a infant seat in which he was carrying her and struck her head on the pavement. Wetz said that he then took Kristina inside, administered first aid to her and tried to feed her. When she would not eat, Wetz said that he lost his temper and struck the baby three or four times. At the end of the day, when he went to pick up Jodi, he told her of the incident with Kristina and apologized. He further told Slote that the following day, July 17, 1983, he once again baby sat for Jodi while she was at work. He said that he placed the baby in the bathtub on a sponge in order to soak her and relieve her bruises. He said that he left for a few minutes to get something to drink and when he returned, Kristina was floating in the water.

 Rick Gatson was a deputy with the Harrison County Sheriff's Department who took some photographs at the Wetz apartment after Kristina was taken to the emergency room, and who was assigned to be with Wetz on July 17 after this happened. Gatson testified that while they were waiting at the emergency room/ Wetz told him that he had slapped Kristina several times pretty hard on that day. Gatson also testified that Wetz at one point bent over in his chair, put his face into his hands and said," I'm glad it's all over with. I can't handle it any more. "

 Patrick Dempsey, a past friend of Wetz' who served in the seabees with Wetz, testified that Wetz had shown him a picture of Jodi, calling her the world's ugliest woman, and a picture of Kristina, saying he did not care about her at all. Dempsey testified that while Wetz was showing him these pictures, Wetz stated:" I'd do anything I can to get these two out of my life. If I had to waste them, I would. "On cross-examination,

 defense counsel attempted to impeach Dempsey's testimony by establishing that Dempsey was trying to make things hard on Wetz because he disliked him.

 Another past naval friend of Wetz, Michael Pethel, testified that Wetz had told him on numerous occasions that he did not care for Kristina. Once Wetz showed him the dresser drawer in which he placed Kristina. Pethel also testified that Wetz made a remark about wondering what he could get for Kristina on the black market. On cross-examination, Pethel testified that Wetz joked around a lot and had an unusual sense of humor. Pethel's wife, Terry, testified that she had heard Wetz say that as far as he was concerned, Kristina was not his daughter and he did not love her.

 Christime Kingsland baby-sat Kristina for Jodi and Wetz. When Jodi and Wetz first began bringing Kristina to her, Kristina appeared to be a healthy, normal baby. Kingsland testified that after Jodi got a job, Wetz started staying with the baby more often, and the baby became more to herself and bruises started appearing on her body. Kingsland's husband, Mark, testified that he and his wife took Kristina to a nurse in their apartment complex because they believed Kristina was being neglected.

 Dr. James A. Sheffield testified, upon the predicate of his examination and treatment of Kristina in the emergency room she died as a result of battered child syndrome. Dr. Monroe S. Samuels, forensic pathologist, gave his opinion that the cause of Kristina's death was trauma to the brain, resulting from multiple injuries to the head. Ann Johnson, the charge nurse who assisted in treating Kristina at the emergency room that day, testified she saw no evidence that Kristina had drowned. *fn2a

 Photographs were introduced depicting Kristina as she appeared while she was being treated in the emergency room. These photographs illustrated multiple bruises on Kristina's head. Wetz attempted to explain the bruises by reference to the incidents incidents said to have occurred the day before, as described above.

 Jodi Owens was the last witness for the prosecution. She testified that Wetz told her that Kristina had fallen out of her carseat and cut her forehead as he was taking her into their apartment. She also testified that Wetz told her he had slapped Kristina after she fell out of the carseat because she would not be quiet. Jodi also testified about two instances of unusual behavior by Wetz before the tragic event of July 17, 1983. She testified that Frank would put Kristina in a

 dresser drawer, thinking it was funny. She also testified that he put tape over her mouth one time. She testified that one the morning of July 17, 1983, she fed Kristina and changed her diapers and at this time Kristina was fully conscious and alert. Jodi also reviewed the photographs of Kristina admitted into evidence and pointed out the differences in her appearance in the pictures since last time Jodi had seen her. Jodi testified that there were many additional bruises on Kristina in the pictures than when she last saw her. On cross- examination, Jodi testified that Kristina fell off the couch and bed several times, but she never saw Wetz strike Kristina.

 At the close of the prosecution's case-in-chief, Wetz moved for a directed verdict on the grounds that the State failed to prove the requisite malice for the crime charged. The Circuit Court overruled this motion and Wetz then testified on his own behalf as the only witness in his case-in-chief. His testimony has already been set out, supra. Following Wetz' testimony, the prosecution called several rebuttal witnesses and Wetz was called for surrebuttal. Thereafter the jury returned a guilty verdict and Wetz was sentenced to serve a term of life imprisonment in Parchman. Following a denial of his motion for a new trial, Wetz brings this appeal.

 III.

 Wetz' initial assignment of error challenges the legal sufficiency of the evidence and urges that we reverse and order his discharge from custody. The point was initially presented to the Circuit Court via Wetz' motion for directed verdict at the end of the case for the prosecution. It was renewed at the end of all of the evidence on his request for a peremptory instruction. The substance of the point was finally presented to the Circuit Court via a portion of Wetz' motion for a new trial *fn3 which was overruled and denied on April 25, 1984.

 Our concern here is whether the evidence in the record is sufficient to sustain a finding adverse to Wetz on each element of the offense of murder. Miss. Code Ann. 97-3-19 (1)(a) (Supp. 1986). In the present context we must, with respect to each element of the offense, consider all of the evidence - not just the evidence which supports the case for the prosecution - in the light most favorable to the verdict. Harveston v. State, 493 So. 2d 365, 370 (Miss. 1986); Callahan v. State, 419 So. 2d 165, 174 (Miss. 1982); Sadler v. State, 407 So. 2d 95, 97 (Miss. 1981). The credible evidence which is consistent with the guilt must be accepted as true. Spikes v. State, 302 So. 2d 250, 251 (Miss. 1974). The prosecution must

 be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Hammond v. State, 465 So. 2d 1031, 1035 (Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984): Glass v. State, 278 So. 2d 384, 386 (Miss. 1973). Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. Neal v. State, 451 So. 2d 743, 758 (Miss. 1984); Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980).We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and ...


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