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Foltz v. State

Supreme Court of Wyoming

December 28, 2017

DONALD DEAN FOLTZ, JR., Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

         Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Katherine A. Adams, Assistant Attorney General. Argument by Ms. Adams.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          KAUTZ, JUSTICE.

         [¶1] A jury convicted the appellant, Donald Dean Foltz, Jr., of first-degree murder and the district court sentenced Mr. Foltz to life without the possibility of parole. Mr. Foltz appeals his conviction, arguing the district court erred when it denied his motion for judgment of acquittal. We affirm.


         [¶2] Mr. Foltz raises one issue in this appeal:

Did the trial court err by denying Mr. Foltz's motion for judgment of acquittal in that there was insufficient evidence to support proof of the elements of child abuse?


         [¶3] In the fall of 2014, Mr. Foltz moved into the home of his girlfriend, Amanda Russell, and her two children. On December 22, 2014, Ms. Russell took her two-year-old son, BB, to a pediatrician, Dr. Fall, with concerns that BB had been vomiting, complaining of leg pain, and that he was bruising easily. After an examination and receiving the results of blood work, Dr. Fall concluded that BB's injuries were due to child abuse. He informed Ms. Russell of his suspicions and contacted the Department of Family Services (DFS). The next day, Sergeant Michael Hieb of the Campbell County Sheriff's Office accompanied an individual from DFS to follow up on Dr. Fall's report. Sergeant Hieb noted many bruises on BB; however, after Ms. Russell explained how BB received all the bruises, he concluded the injuries did not appear to be the result of child abuse.

         [¶4] From the evening of December 23 through the morning of December 29, BB and his four-year-old sister, AR, spent most of their time with babysitters and family friends. During the evening of December 23, Ms. Russell left the children with their babysitter, Mercedes Corbett, while she and Mr. Foltz went to Rapid City to finish Christmas shopping. The children spent the day and night of December 24 with John and Candace LaValle. Ms. Russell arrived at the LaValle house at around noon on Christmas day, and after eating Christmas dinner and opening presents, took the children to her mother, Donna Blake's, home to open presents. Ms. Russell and AR went to Ms. Russell's home after spending time with the family at Ms. Blake's, while BB stayed the night with his grandmother. On December 26, both children went back to the LaValle home where they stayed until approximately noon on December 29. The LaValles then delivered the children to Ms. Russell at her residence.

          [¶5] The children spent the rest of December 29 at the home with Ms. Russell and Mr. Foltz. The family had no visitors. That evening, Mr. Foltz put BB to bed and he and Ms. Russell went to bed at approximately 10:30 p.m. On December 30, Mr. Foltz got out of bed at 8:00 a.m. when he heard through the baby monitor that BB had awakened. Ms. Russell stayed in bed until after noon, but she could hear through a window Mr. Foltz, BB and AR working and playing outside. After Ms. Russell got out of bed, she remained in the home until about 4:00 p.m. when she left the children with Mr. Foltz for approximately forty-five minutes while she visited a friend. Ms. Russell returned home, but later that evening went to the grocery store to purchase electrolytes for BB because Mr. Foltz said that BB had vomited during the day. When Ms. Russell left for the store, Mr. Foltz had already put BB to bed for the night.

         [¶6] While Ms. Russell was at the store, Mr. Foltz brought an unresponsive BB into Ms. Blake's home through the back door.[1] Mr. Foltz told Ms. Blake that he had checked on BB after hearing a noise on the baby monitor. He discovered there was something wrong with BB, he needed help, and he did not know what to do. Ms. Blake called 911, wrapped BB in a blanket, and then got into her vehicle with her boyfriend and BB to meet the ambulance on the way to the hospital. Mr. Foltz stayed behind to take care of AR.

         [¶7] Ms. Blake attempted to perform CPR as instructed by the 911 operator, but when she pressed on BB's chest he began to vomit. She turned on a light in the vehicle and noticed a large bruise on BB's forehead. She then met the ambulance, and emergency medical personnel took BB to the hospital. Emergency staff made vigorous attempts to revive BB, but were unsuccessful. He was pronounced dead at 10:35 p.m. The emergency room physician who attempted to revive BB noted extensive bruising from BB's jaw to chest, a bruise with swelling on his forehead, a distended abdomen, and multiple bruises over the rest of BB's body. The physician believed the injuries were due to child abuse and contacted law enforcement.

         [¶8] Dr. Donald Habbe performed an autopsy the next day and concluded that BB died from blunt force trauma to the abdomen. Dr. Habbe discovered multiple tears in BB's mesentery[2] which caused bleeding into the abdomen. He believed the tears were caused by multiple instances of force and were recent injuries that had occurred in the twenty-four hour period before BB's death.

         [¶9] Following an investigation, the State charged Mr. Foltz with one count of first-degree murder under Wyo. Stat. Ann. § 6-2-101(a) (LexisNexis 2017).[3] The State alleged that Mr. Foltz caused BB's death during the perpetration of child abuse. A jury found Mr. Foltz guilty of the charge, and the district court sentenced Mr. Foltz to life imprisonment without the possibility of parole. Mr. Foltz filed a timely notice of appeal.


         [¶10] This Court reviews a motion for judgment of acquittal in the same light as the district court. Bean v. State, 2016 WY 48, ¶ 43, 373 P.3d 372, 387 (Wyo. 2016). When reviewing a motion for judgment of acquittal:

we examine and accept as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom, leaving out entirely the evidence of the defendant in conflict therewith.
A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. Or, stated another way, if there is substantial evidence to sustain a conviction of the crime, the motion should not be granted. This standard applies whether the supporting evidence is direct or circumstantial.

Bruce v. State, 2015 WY 46, ¶ 52, 346 P.3d 909, 925-26 (Wyo. 2015) (quoting Butcher v. State, 2005 WY 146, ¶ 11, 123 P.3d 543, 548 (Wyo. 2005)). As a practical matter, the standard of review for denial of a motion for judgment of acquittal is the same as that used when an appeal claims insufficient evidence to convict. This is because these appeals both challenge the sufficiency of the evidence. Although Mr. Foltz facially challenges the denial of his motion for judgment of acquittal, he is in fact claiming that the evidence was insufficient to sustain a conviction. When applying this standard, we do not reweigh the evidence or re-examine the credibility of the witnesses. Bean, ¶ 45, 373 P.3d at 387. Instead, we simply determine "whether or not the evidence could reasonably support such a finding by the factfinder." Id. (quoting Hill v. State, 2016 WY 27, ¶ 13, 371 P.3d 553, 558 (Wyo. 2016)). "We review the sufficiency of the evidence 'from this perspective because we defer to the jury as the fact-finder and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt.'" Id. (quoting Oldman v. State, ...

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