NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Dawson County: James E. Doyle IV, Judge. Affirmed.
Brian J. Davis, of Berreckman & Davis, PC, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
Embody, Chief Judge, and Moore and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Doris Herrin appeals from her conviction in the district court for Dawson County for manslaughter. She also appeals the resulting sentence of 18 to 20 years' imprisonment. Because we find no merit to her arguments on appeal or the record is insufficient for review on direct appeal, we affirm.
On the morning of December 21, 2010, 3-year-old M.H. was in the home of her mother, Herrin, and her mother's boyfriend, Adam Jesseph, in Gothenburg, Nebraska. At some point during the morning, M.H. experienced an event that traumatized her brain and caused her to lose consciousness. Herrin and Jesseph were home at the time. Jesseph contacted his mother, informed her that M.H. had fallen and "knocked herself out, " and asked for the telephone number of a medical clinic. Jesseph called the clinic seeking information about the signs of potential head injuries. He stated that M.H. had been playing in her room when he heard a crash. After learning M.H. had also vomited, the clinic office manager told him to bring her in immediately.
Herrin and Jesseph instead drove M.H. to the emergency room at the Gothenburg hospital, where Dr. Craig Bartruff examined her. Dr. Bartruff noticed that her pupils were dilated and nonresponsive to light, which indicated that she suffered from a central nervous system injury. M.H.'s CAT scan showed the presence of a subdural hematoma. Dr. Bartruff noted that M.H. had bruises on her legs, a bruise on her chin, and an abrasion to her back; these marks did not cause him concern that M.H. was being abused.
Dr. Bartruff obtained a patient history from Jesseph. Jesseph advised that he and Herrin heard a "thunk" in M.H.'s bedroom and found her on the floor unresponsive. He and Herrin also noticed that she had urinated. Dr. Bartruff was concerned about how the injury occurred and, being aware of the mandatory reporting requirement for child abuse, he asked someone to contact law enforcement on his behalf.
While at the Gothenburg hospital, M.H.'s ability to breathe deteriorated and she required intubation and medical transportation to a hospital in Kearney, Nebraska. M.H. presented at the Kearney hospital with a hematoma in her brain and retinal hemorrhaging. The extensive hematoma was causing extensive brain swelling and needed to be evacuated.
A neurosurgeon at the Kearney hospital removed M.H.'s right frontal lobe in order to make room for the rest of her brain, but the measure was insufficient to relieve the swelling. A CT scan taken after the surgery showed that M.H. did not have blood supply to the entire right side of her brain or her left frontal area. At this point, M.H.'s doctors determined that her survival was unlikely. Doctors kept M.H. alive overnight using a ventilator in order to give her family time to visit. The next morning, Dr. Kenton Shaffer examined M.H. and found no evidence of brain function. The decision was made to take M.H. off of life support, and she died shortly thereafter.
While M.H. was in the hospital receiving treatment, the Gothenburg police department began investigating Herrin for child abuse. Kearney police officer Tim Beckenhauer assisted the investigation by speaking with Herrin while she was at the Kearney hospital. Herrin informed him that she woke up at about 10 a.m. on December 21. M.H. then woke up, followed by Jesseph. M.H. wanted to watch television in her room, and Herrin and Jesseph acceded to that request. Shortly afterward, Herrin and Jesseph heard a "thump" in M.H.'s bedroom, ran to the room, and found M.H. on the ground unresponsive. Herrin said they splashed water on her face and then took her to the emergency room. Officer Beckenhauer also asked whether M.H. had had any recent experiences of head trauma, including falls or car accidents, and Herrin said she had not.
Officer Beckenhauer interviewed Herrin a second time that night at the police station, because her story did not match Jesseph's. In that interview, the officers asked Herrin whether Jesseph had abused M.H. Herrin vehemently denied Jesseph's involvement in any type of child abuse, noting that he never watches her children. After the interview, Herrin made several animated telephone calls in which she expressed anger that the police might try to accuse Jesseph of harming her child. In the telephone calls, she angrily stated that he could not have done anything because she was present the entire time.
Dr. David Jaskierny performed an autopsy on M.H. Dr. Jaskierny determined that M.H. died from blunt force trauma to her head. He opined that the trauma caused an acute subdural hematoma, which caused M.H.'s brain to swell and prevented blood flow. He testified that M.H.'s acute subdural hematoma could not have been caused by an accidental fall.
Dr. Jaskierny rejected the theory that M.H.'s injuries were caused by reinjuring a previous hematoma that was still healing. He testified that had there been a previous hematoma, he would have observed scar tissue and iron would have been visible through staining. The absence of these suggested an acute, rather than a chronic, hematoma.
In addition to the hematoma, Dr. Jaskierny noted M.H. had bruises on the back of her head, her left jaw line, the right side of her nose, the tip of her nose, her forearms, elbows, the back of her hand, both sides of her buttocks, her legs, and the tops of her feet. Dr. Jaskierny opined that some of the bruises could potentially have resulted from medical manipulation and some of the bruises could be normal, but he did not believe that all of the bruises were sufficiently explained. A doctor at a children's advocacy center agreed that M.H.'s bruises suggested abuse rather than medical manipulation.
Herrin 's Arrest.
The day after the autopsy, the county attorney filed a complaint and application for an arrest warrant against Herrin on the ground that she caused or permitted a minor child to be placed in a situation that endangered the child's life. After her arrest, Herrin wrote several letters from jail to various individuals, including the county attorney, M.H.'s biological father, her stepfather, and friends. The letters offered varying accounts of the events leading to M.H.'s death. At times, Herrin blamed Jesseph, and at times, she blamed M.H.'s death on the neurosurgeon or an unknown brain abnormality.
Trial commenced in August 2012. At trial, both parties presented witnesses that discussed Herrin's demeanor and statements to others as well as medical opinions regarding the cause of M.H.'s injuries.
Officer Beckenhauer and some family members present at the hospital testified that Herrin's behavior seemed odd. Officer Beckenhauer noted that Herrin did not cry or seem concerned about her daughter's condition. Her behavior did not change after she was informed that M.H. could not be saved. Herrin's stepfather and Jesseph's mother also commented that Herrin was joking and that they found it inappropriate. Rather than joking, however, Herrin's mother testified that she heard Herrin crying in the chapel at the hospital and saying "I'm sorry." Herrin's sister, Shawna McEntire, testified that the day M.H. died, Herrin told her that she could not wake up M.H. and did not mean to shake her.
Some observers claimed that Jesseph seemed to be controlling Herrin while they were at the hospital. The surgery supervisor at the Gothenburg hospital testified that Jesseph nervously informed her of M.H.'s history and would not let Herrin speak. M.H.'s daycare provider similarly observed Jesseph controlling the story. Herrin's stepfather testified that Jesseph seemed controlling. Friends who visited with Jesseph and Herrin shortly after M.H. died had conflicting opinions about Jesseph. One of Herrin's friends and her estranged husband both testified that Jesseph was controlling when Jesseph and Herrin visited the day after M.H.'s death. Another one of Herrin's friends, however, testified that she saw Herrin and Jesseph on the day of M.H.'s death and that Jesseph did not seem controlling.
In addition to presenting evidence about Herrin's demeanor, both parties presented conflicting medical evidence about the cause of M.H.'s injuries. The State presented medical evidence that M.H.'s injuries could not have been caused by a fall in the home. Dr. Shaffer was skeptical of Herrin's explanations for M.H.'s injuries. Dr. Shaffer opined that M.H.'s death was caused by "something violent, " potentially including shaking or being thrown against something. He explained that M.H. presented with retinal hemorrhaging, which does not occur unless a patient experiences a great deal of force. He explained that retinal hemorrhaging comes from a shearing injury more consistent from shaking than falling. Shearing injuries come from tearing the tiny blood vessels that bridge the dura and the lining of the periosteum on the brain.
The neurosurgeon at the Kearney hospital, on the other hand, testified that M.H.'s hematoma suggested an impact injury. Herrin presented an expert witness that agreed M.H.'s injury was due to impact. Dr. David Posey testified that M.H.'s cause of death was a fall in the home complicated by blunt force trauma to the head and brain. In particular, Dr. Posey testified that M.H. suffered an acute-on-chronic subdural hematoma. He opined that M.H. suffered an injury causing a subdural hematoma on some date prior to December 21, 2010, and that an accidental fall on December 21 caused the original wound to bleed again.
The State presented the testimony of Dr. Matthais Okoye to refute Dr. Posey. Dr. Okoye disagreed with Dr. Posey's opinion that M.H. had a chronic hematoma in addition to an acute one. According to Dr. Okoye, M.H. died from a combination of shaking and impact on the head.
Amber Winkenwerder testified that while she and Herrin were inmates, Herrin told her the following: The day before M.H. died, she woke up before Herrin and would not go back to sleep. Herrin began playing a movie for M.H., but M.H. started jumping and screaming on her bed. Herrin responded by grabbing her, shaking her, telling her to shut up, and then pushing her away. As Herrin pushed M.H. away, M.H. hit her head on the wall. M.H. wet herself, her pajamas, and the bed. Herrin left to get M.H. a change of clothes, but when she came back, M.H. had bluish lips and was breathing abnormally.
Herrin impeached Winkenwerder's testimony with the testimony of other inmates who testified that Winkenwerder did not like Herrin, that the two never talked, and that they would not have been able to speak without being overheard by others.
The jury found Herrin guilty of manslaughter, and she was subsequently sentenced to 18 to 20 years' ...