Page:United States Reports 502 OCT. TERM 1991.pdf/232

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ESTELLE v. McGUIRE Opinion of the Court

finding by a preponderance of the evidence. Cf. People v. Simon, 184 Cal. App. 3d 125, 134, 228 Cal. Rptr. 855, 858 (1986); Huddleston v. United States, 485 U. S. 681, 690 (1988). The proof of battered child syndrome itself narrowed the group of possible perpetrators to McGuire and his wife, because they were the only two people regularly caring for Tori during her short life. See People v. Jackson, 18 Cal. App. 3d, at 507, 95 Cal. Rptr., at 921 (“Only someone regularly ‘caring’ for the child has the continuing opportunity to inflict these types of injuries; an isolated contact with a vicious stranger would not result in this pattern of successive injuries stretching through several months”). A neighbor testified that she had seen McGuire treat Tori roughly on two occasions, and that McGuire’s wife was scared to leave Tori alone with McGuire because he “did bad things” to her; the neighbor further testified that she had never seen McGuire’s wife abuse the child in any way. Futhermore, when being questioned by the police after Tori died, McGuire’s wife stated that she observed bruises on the baby’s body when bathing her. When asked by the police for an explanation, she replied, “I don’t really know, you know, I am not the only one who is taking care of her.” App. 131. The evidence described, along with other evidence in the record, convinces us that there was sufficient proof for the jury to conclude, if it so desired, that McGuire caused the prior rib and rectal injuries. McGuire also contends that, even if the determination of the perpetrator was left to the jury, the instruction constituted a “propensity” instruction, allowing the jury to base its determination of guilt in part upon the conclusion that McGuire had committed the prior acts and therefore had a propensity to commit this type of crime. While the instruction was not as clear as it might have been, we find that there is not a “reasonable likelihood” that the jury would have concluded that this instruction, read in the context of other instructions, authorized the use of propensity evidence