APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Thomas K. McGuire, Jr., Judge
The opinion of the court was delivered by: Flanigan
A jury found defendant Leon Williams, Jr., guilty of murder in the second degree, § 565.021, *fn1 and he was sentenced to life imprisonment. The victim was defendant's three-year-old stepson, Justin Minogue. Defendant appeals.
In general, defendant contends: (1) There was a prejudicial variance between the offense charged in the information and the offense as submitted in Instruction 5, the verdict-directing instruction; (2) the trial court erred in admitting evidence of defendant's prior mistreatment of Justin and in giving Instruction 9 dealing with that subject; (3) the prosecutor's closing argument was prejudicially erroneous in several particulars.
In addition to its formal portions, the information charged that defendant committed the class A felony of murder in the second degree, "in that on or about March 9, 1990, in the County of Oregon, State of Missouri, the defendant with the purpose of causing serious physical injury to Justin Michael Minogue, d.o.b. 7/28/86, caused the death of Justin Michael Minogue by striking him in the abdomen."
Defendant does not challenge the sufficiency of the evidence to support the conviction. In light of defendant's contentions on appeal, the following portions of the trial testimony are set forth:
Tom Clary: I am a funeral director-embalmer at Alton; in the early hours of March 9, 1990, I received a telephone call from defendant's father to come to his house, and my father and I went there; my father is the coroner; Justin's body was lying, fully clothed, on a sofa; we took Justin to the funeral home and undressed him; Justin was bruised from head to toe; we returned to the Williams house and told defendant's father that an autopsy was necessary; my father quizzed defendant about the bruises on Justin's body; my father asked defendant if he had disciplined Justin, and defendant said that he did with his hand; we notified the chief of police, the sheriff, the juvenile officer, and a pathologist; the death certificate of Justin, state's Exhibit 9, says: "The cause of death is blunt trauma of the abdomen, which is due to blunt soft tissue trauma, and peritonitis caused by a blow to the abdomen"; Exhibits 1 through 8 are photographs of Justin's body.
Allen Paris, M.D.: I am a physician and pathologist; on March 9, 1990, I performed an autopsy on Justin Minogue at the request of the coroner; the most striking feature was obvious immediately - extensive bruises and abrasions over large areas of the body; I have autopsied several children in the past for SIDS death, and none of them have ever had bruises before or any suspicious markings; this one was shocking from the first observation; there were dramatic lesions on both buttocks, two large abrasions surrounded by large areas of bruising that had the shape appearance of a belt; there were 15 scarred areas on the back along the line of the spinal column suggestive of cigarette burns; there was a hole in the intestinal wall in the mid-portion of the small intestine; I found no sign of bruising that would indicate that the perforation was due to trauma of the abdomen; "I had what was visually a child who had been beaten"; the death was caused by intraperitoneal sepsis, which was secondary to intestinal laceration, which was secondary to blunt trauma to the abdomen; blunt trauma is a blow; the time between the rupture of the bowel and the time of death was a period of at least 6 hours and at most 48 hours.
Fred Lang: I am a funeral director and handled the service; I saw Justin's upper chest, neck, and face; I couldn't believe what the guy looked like.
John Minogue: I am Justin's uncle and I was around Justin his whole life; in June or July 1989, I took Justin to the bathroom and pulled up his shirt; there were marks across his back; I pulled down his pants and his underwear and there were more bruises on his butt; this concerned me; I told defendant I thought he was going a little bit hard on Justin; defendant said Justin was his son now and he would discipline him in any way he saw fit; I told defendant if I ever saw anything like that again I would "beat his ass."
Mary Minogue: I am Justin's mother; defendant and I were married on April 8, 1989, and we were divorced after this happened; I worked two jobs and was not home a lot; defendant disciplined Justin; defendant used his hand, spanking, and there were times defendant would smack Justin in the face; I tried to put a stop to it but it didn't do any good; I saw red marks on Justin's face and bruises on him; I saw marks that looked like belt marks; my brother John exhibited concern to me about Justin's well-being and I confronted defendant; defendant said that he didn't spank him that hard and . . . really I didn't get an explanation.
She further testified: On Halloween 1989, Justin was getting ready to go trick-or-treating and was wearing a clown costume; he had white makeup all over his face; after the trick-or-treating, I removed the white makeup and there were bruises on his face; I confronted defendant and defendant said, "Justin wouldn't eat and I smacked him"; in the early winter months of 1989, I saw bruises on Justin's legs and face and arm; I said something to defendant and he said, "I'm going to discipline him whether you like it or not"; in March 1990, we moved to Alton from Franklin County; defendant took Justin and my second son, Jordan, to Alton; Jordan was born December 27, 1989, to me and defendant; defendant took the boys to Alton on Saturday, and the following Thursday I got a call saying Justin was dead; Justin did not have any bruises on him when he left Franklin County with defendant; I went to Alton and asked defendant why Justin had died; defendant started crying and said he didn't do it; at the time of his death, Justin weighed 23 pounds and was 36 inches tall.
Shirley Ellis: I am an employee of the Division of Family Services; on June 15, 1989, I responded to a hot line call regarding defendant and his wife; I looked at Justin; there were bruises on his buttocks; I asked defendant how Justin got the bruises, and defendant said he had spanked Justin with a belt for wetting his pants; defendant said he had hit him two or three times and realized he had hit him too hard; defendant said he struck him three times with a belt and that "he was the master in his house and he would decide what was said and what was done in his house."
Mary Joan Minogue: Mary Minogue is my daughter; she and Justin lived with me for 2 1/2 years and then she married defendant; in June or July 1989, I saw bruises and markings on Justin's body; he had bruises all over his little behind; I talked to defendant about the bruises and defendant said he spanked Justin harder than he realized; in December 1989, defendant took Justin into a bedroom; when Justin came back from the bedroom, his ear was all red; I notified my daughter.
Eva Jackson: Defendant is my ex-stepson; around May 1989, we were in a restaurant; Justin didn't want to eat and defendant took him to the restroom and spanked him; out in the restaurant we could hear Justin crying; I told defendant's father to go stop that, he's hitting him that hard and we can hear him out here; defendant's father didn't; I told defendant it wasn't necessary to whip that child that hard; later we went to the bar owned by defendant's father, which was closed; defendant and Justin and Mary went into the bedroom; defendant came out with a large cooking spoon in his hand; it was made of very hard material; I followed defendant into the kitchen and asked him if he had whipped Justin with that spoon; defendant didn't pay any attention; I went to the bedroom where Mary had Justin standing, putting his jammies on; his bottom was purple.
Doug Loring: I am a sergeant with the Highway Patrol; on March 15, 1990, I interviewed defendant after reading him his rights; during the interview I showed defendant photographs of Justin's body; defendant told me that on March 9, Justin ate some pizza and then vomited, and defendant sent Justin to the bathroom and made him stay; when Justin came out, he started to vomit again, and defendant sent him back the second time; he said he whipped Justin; defendant said he laid the boy across his knee and took a belt; he told me how he doubled it up and struck the boy three times; defendant said that his father definitely never touched Justin; defendant said he was the head of the household and that he took care of the discipline; I asked defendant about some tooth marks on Justin's left thigh and defendant admitted that he did bite the child but he didn't realize he bit hard enough to leave marks that night; defendant said that most of the marks shown in the photographs weren't on there when Justin was at his house; I said, "Are you accusing the funeral director of putting the marks on the body?" and defendant said, "Well, they wasn't on there when he left the house"; defendant said that Justin went to bed wearing underwear and a pair of socks; it was never explained to me how Justin had his clothes on when he was found by John Clary; after defendant looked at the photographs I said that things must have gotten out of hand and that he was hitting him harder than he thought, and all defendant said was he didn't hit him any harder but from the looks of the photographs that it was too hard; throughout the interview, defendant denied striking the boy with his fist and especially striking him in the stomach.
Mary Case, M.D.: I am a physician and forensic pathologist; on March 13, 1990, I conducted a post-mortem examination of Justin; my initial impression was that Justin was a child who received multiple blunt trauma externally to the body; I could count 89 separate marks of inflicted injuries; there were areas that could have been overlapping injuries and there could have been more; that is a very large number of impacts to a very small child; this is a three-year-old thin little boy; he had the appearance that he had been severely traumatized; 79 of the impact areas were bruises, one was a bite mark, several were abrasions; there was a laceration of the frenulum, which is pathognomonic of child abuse; it is an injury that we only see by inflicted injuries; it is not something that occurs accidentally; it is usually inflicted by slapping in the face; there were wound areas in the right upper extremity; there was an abrasion on the back of the forearm which could have been inflicted by a belt; on the right thigh and right leg there were loop mark pattern abrasions which could have been by a belt; Justin had a bite mark, quite significant of abusive injuries; the implication of a bite mark of that nature in a child by an adult is that if you don't stop that abusive behavior that child will probably die of abuse; the bite mark and the torn frenulum are highly indicative of inflicted injuries; the multiplicity of marks on this child is quite overwhelming and indicative of very massive maltreatment of this child; the injuries were fresh, they were not present two or three days [before death]; their appearance was less than 24 hours, possibly less; Justin died as a result of blunt trauma applied to the abdomen which lacerated a portion of the small intestine; that allowed fecal material to flow out of the intestine into the peritoneal cavity, and that caused peritonitis; externally there were no marks of significance on the outside of the abdomen; that is not unusual; the fact that he had a very massive injury inside, without injury to the outside, in children that is very common; the majority of abdominal injuries will not have an external mark; there were other injuries around the intestine in the internal organs which support the blunt trauma force to the abdomen; there was a very significantly damaged mesentery, the fatty part of the intestine; it would have taken a significant force to have caused the laceration in the intestine and the hematoma of the mesentery; there were probably 12 to 24 hours between the time of the blow and Justin's death; Justin did not die of natural causes, nor as a result of accidental cause; the cause of death is laceration of the intestine from blunt trauma; someone struck with some part of their body or with other instrument, very forcefully, one or more times into the abdomen to cause that tearing of the intestine; this is an inflicted injury; this is abuse; I can't say who delivered the blow but it's a very closed population as to who had exposure to the child.
Angelo Lapi, M.D.: I am a physician and pathologist; without viewing the body or the viscera, I could not say with reasonable medical certainty that this death was caused only by a blunt instrument striking the abdomen and lacerating the intestines; I cannot say with reasonable medical certainty, absolutely, that the cause of this baby's death was blunt trauma to the abdomen; I agree that peritonitis caused the death; I have seen the photographs of Justin on the autopsy table and the abrasions and bruises on his body; those bruises, cuts, abrasions, and lacerations are consistent with trauma; I think that Justin was an abused child.
Leon Williams, Sr.: I am defendant's father; on the evening of March 8, Justin took two bites of pizza and he threw up; defendant put Justin in the bathroom and said, "Go in the bathroom, Justin, and finish throwing up, because I know you are going to"; the next day I told Officer Gale that Justin got a spanking last night and defendant said he did it; I never laid a hand on Justin or disciplined him; the only people staying at my residence were me, defendant, and the two children; Justin was in the care of defendant.
Leon Williams, Jr.: I never hit that boy in the belly; I did not kill my little boy; in June 1989, I did whip Justin and caused the bruise on his rear-end; I told Shirley Ellis, "I am the ruler and master of this house"; I have never beat on my son, I have whipped him; when Justin's body was removed from my father's house, there were no marks on his body; the Bible says, "and you shall take a rod, and you shall beat your child and you shall deliver his soul from hell"; nowadays you spank your child's butt and that's called child abuse.
Defendant's first point is that the trial court erred in giving Instruction 5 because there was a variance between the information and the instruction. The information charged that the defendant "caused the death of by striking him in the abdomen." Instruction 5 submitted that "the defendant caused the death of by striking him." Defendant contends that the omission of the words "in the abdomen" in Instruction 5 constituted a material and prejudicial variance.
Defendant concedes that his first point has not been preserved for appellate review because the challenge to Instruction 5 was not presented to the trial court at the trial or in defendant's motion for new trial. To preserve the error for review, any specific objections to an instruction which were not made at the trial before submission to the jury must be set forth in a motion for new trial. Rule 29.11(d). This court, in its discretion, reviews defendant's first point for possible plain error. Rule 29.12(b). Plain error requires a finding by this court that manifest inJustice or miscarriage of Justice has resulted therefrom. Id.
A person may not be "charged with one offense, or with one form of an offense, and convicted of another." State v. Lee, 841 S.W.2d 648, 650 (Mo.banc 1992). When a crime may be committed by any of several methods, the method submitted in the verdict-directing instruction must be among those alleged in the information. A variance alone is not conclusive to the question of whether there is reversible error. To justify reversal, a variance must be material and prejudicial to the rights of the accused. Id. A variance is material if it affects whether the defendant received adequate notice from the information, but a material variance is not always prejudicial. A variance is prejudicial only if it affects the defendant's ability adequately to defend against the charge presented in the information and given to the jury in the instruction. Id. Even if a variance exists, it is not reversible unless a charge, new and distinct from the offense alleged in the information, is submitted to the jury. State v. Brigman, 784 S.W.2d 217, 222 (Mo.App. 1989); State v. King, 747 S.W.2d 264, 275 (Mo.App. 1988).
Section 565.021 reads, in pertinent part:
"1. A person commits the crime of murder in the ...