State v. Weir

1

State of Wisconsin, Plaintiff-Respondent, v. Joshua L. Weir, Defendant-Appellant.

No. 2021AP1024-CR

Court of Appeals of Wisconsin, District II

March 1, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment and an order of the circuit court for Winnebago County: No. 2017CF462 JOHN A. JORGENSEN, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Joshua L. Weir appeals a judgment of conviction, following a jury trial, for physical abuse of a child-recklessly causing great bodily harm-as a repeater. He also appeals an order denying postconviction relief. On appeal, Weir argues the evidence supporting his conviction was insufficient, and the trial court erroneously exercised its discretion in certain evidentiary admissions. Weir also argues that, during trial the State engaged in prosecutorial misconduct, and Weir's counsel was ineffective for failing to object to the misconduct. We reject Weir's arguments and affirm.

BACKGROUND

¶2 On June 29, 2017, four-year-old Samantha^[1] arrived at an emergency room in Oshkosh with life-threatening second- and third-degree burns on her legs and back and had to be "med-flighted" to Children's Hospital of Wisconsin in Wauwatosa. Weir, who was Samantha's mother's boyfriend, advised medical staff in Oshkosh that he left a very hot bath unattended, and Samantha fell in. Medical staff at Children's Hospital flagged the case for child abuse, determining Samantha's injuries were not consistent with Weir's report. Samantha's burns were "diagnostic for forced immersion with medical certainty" and caused Samantha "excruciating pain[.]" The State charged Weir with physical abuse of a child-recklessly causing great bodily harm-as a repeater.

¶3 The court held a three-day jury trial. At trial, Dr. David Gourlay, a pediatric surgeon who runs the pediatric trauma program at Children's Hospital and oversees all burn patients, provided an overview of the different degrees of burns and explained that third-degree burns often require skin grafts. Samantha had to stay in the hospital for a few months and had skin grafts on her "lower legs, feet, as well as her thighs, buttocks, and a little bit on her torso." Gourlay used healthy skin from Samantha's back and front torso for the skin grafts.

¶4 Gourlay also testified that if a child fell into hot water he would expect to see evidence of water splashes or splash burns as the child tried to get away from the source of pain unless the child was being held in the water. In his twenty years of practice, Gourlay never had a case in which a patient came in contact with a burning heat source and became immobilized. In preparation for this case, Gourlay researched medical literature for "a freeze reaction to exposure to heat" and found nothing.

¶5 Dr. Thomas Sato, a pediatric surgeon at Children's Hospital who specializes in burn treatments, testified he participated in Samantha's care. Samantha needed narcotics to manage her pain. Sato testified that when the body is burned "the response to the body is immediate pain[,]" and a natural reaction to withdraw from the pain is triggered. The only exception to this withdrawal reaction would be for an individual who lacked physical sensation because of illness or spinal cord damage. Samantha had neither condition. In Sato's thirty-one years of clinical practice, he had never seen or read in medical literature about a phenomenon where an otherwise neurologically fit person came in contact with a heat source and was immobilized by it.

¶6 The jury heard that Gourlay, Sato, and Children's Hospital of Wisconsin were not being compensated for Gourlay's and Sato's testimony. Gourlay and Sato each generate approximately $6,000 per day in clinical revenue for patient care. The two doctors' participation in this case cost the practice over $30,000.

¶7 On June 30th, the morning after Samantha's injuries Detective Jeremy Wilson measured the temperature of the water coming out of the bathtub's hot-water tap at 135 degrees Fahrenheit.^[2] Wilson also found a pair of damp black leggings next to the bathtub. When Wilson returned to Weir's residence approximately one month later to do a further temperature analysis, he learned the landlord turned the water heater down following Samantha's burns. Wilson and the landlord tried to recreate the water heater's setting, and Weir measured the temperature of the water coming out of the bathtub's hot-water tap at 130 degrees and the water in the bathtub at 128 degrees.

¶8 Dr. Lynn Sheets is the medical director of the child abuse program at Children's Hospital as well as a professor with the Medical College of Wisconsin. She is board certified in both general pediatrics and child abuse pediatrics. Sheets assisted in examining Samantha while she was heavily sedated in the operating room with the burn surgeons. Upon viewing Samantha's burns, it was obvious to Sheets that Samantha had been submerged in the water with her thighs pressed up tightly against her abdomen and her knees above the water because Samantha had "sparing," or unburned skin, on her knees, thighs and abdomen. Photos of Samantha's burns were shown to the jury. Sheets pointed out to the jury the "tide line" or water line on Samantha's skin, separating the unburned skin from the burned skin. Sheets explained that "if you line up the line, you can put the child in the position that she was in at the time that she was burned."

¶9 Sheets testified the "hot" water threshold for adults is approximately 113 degrees Fahrenheit, and it is even lower for children. At that point, when "hot" is perceived by the body, a withdrawal reflex kicks in. Sheets explained that, in this case, the police reported the bath water's maximum temperature was 130 degrees Fahrenheit, and "130 is well above the painful threshold. In fact, the child would have immediately perceived that as very hot and would have withdrawn as soon as that water is encountered." Sheets explained that when a child accidentally falls into a hot bath:

you will see lots of burns kind of everywhere because the child is struggling, trying to get out. You will see sometimes splash burns, although at 130, you may not see a lot of splash but you will see burns everywhere as the child is struggling and then manages to get out. So the burns, you don't see like a sharp tide line and the things we saw with [Samantha].

¶10 Sheets explained Weir's version of events was that Samantha "must have fallen into the tub, was found in a squatting position like you poop in the forest and said the water was hot and was unable to get out and was basically in a squatting, hands out, position." This version of events was "[a]bsolutely not" possible in Sheets' view because

a child falling into water does not do that. But a child who's able to get into the water as soon as they encounter the water, they are withdrawing. So if she, say, lost her balance, you would not expect to see sharp tide lines. At 130 degrees, you're talking about an exposure in that position of between 10 and 30 seconds to get this kind of a burn so a child would not do that. And then the position is one of a sitting child, not squatting, and with her legs really crunched up as though pushed into the front of the tub near the faucet where her legs can't move.

¶11 Sheets believed Samantha had suffered physical abuse "[b]ecause the pattern of the burns and unburned skin on her was absolutely classic --basically, a teaching case for what forced immersion burns look like." Sheets elaborated she has over thirty years of experience, and there is a large amount of published research on the appearance of a forced immersion burn. Sheets opined Samantha "has inflicted forced immersion burns that involved about 34 percent total body surface area in a pattern that was absolutely diagnostic for child physical abuse with medical certainty."

¶12 Weir testified that he first gave Samantha's older and younger brothers a bath before bed. Samantha indicated she did not want to take a bath because "she had one at her grandparents so then I just said I'd let your mom deal with it when she got home." Weir then drew a bath for himself and "filled up the bathtub with hot water. I normally do that because it takes me a little while to get them all laid down, and it takes a while for the bathtub to fill up. And you['ve] seen the picture, the nozzle is this big so it takes a while so I filled up with hot water[.]" He typically gets into the bathtub twenty to thirty minutes after he fills it.

¶13 While the bath water was running, he was dressing Samantha's younger brother in the bedroom. Weir heard screaming from the bathroom, and he went to the bathroom. Samantha was in the bathtub screaming and told Weir the water was hot. Weir told her to get out of the bathtub, and Samantha said she could not get out. Weir pulled her out and tried to stand her up. Samantha could not support her weight and she appeared to be in quite a bit of pain. She was wearing black leggings, and they were steaming.

¶14 Weir immediately called Samantha's mother, Susan, who was at work. Susan told Weir to put her in a cool bath, which was what he did. Once in the cool bath Samantha "kind of relaxed a little bit and chilled out, started playing with the toys that I had in there for [Samantha's little brother], started messing with them, asked me to wash her hair. And I thought everything was good, she was calm." Weir washed Samantha's hair. When he was done washing her hair, he took her out of the bath and started drying her off...