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Kilcrease v. State

Court of Appeals of Missouri, Eastern District, Second Division

November 24, 2015

MARCUS KILCREASE, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 169

          Appeal from the Circuit Court of the City of St. Louis. 1422-CC00262. Honorable Rex M. Burlison.

         Kim Freter, St. Louis, MO, for appellant.

         Chris Koster, Dora A. Fichter, Jefferson City, MO, for respondent.

          OPINION

         Gary M. Gaertner Jr., J.

Page 170

          Introduction

         Marcus Kilcrease (Movant) appeals the judgment of the motion court denying his motion to vacate, set aside, or correct the judgment and sentence under Rule 24.035[1] (Rule 24.035 Motion) after a partial evidentiary hearing. We affirm.

         Background

         Movant entered a blind plea of guilty to three counts of assault in the first degree (Counts I-III), three counts of abuse of a child (Counts IV-VI), and three counts of child endangerment (Counts VII-IX), arising out of injuries that occurred to minor child Z.B. between March 15, 2012 and June 6, 2012, The factual basis underlying his pleas, as presented by the State at Movant's plea hearing, was the following.

         On June 6, 2012, Z.B. was just under two years old. Z.B.'s mother went to work and left Z.B. and Z.B.'s younger brother home with Movant. Later that morning, Movant called Z.B.'s mother and told her Z.B. had fallen off of the bed and was not responding to him. Z.B.'s mother told Movant to call 911.

         At the hospital, Z.B.'s mother learned that Z.B. had multiple healed rib fractures, which were approximately eight weeks old. Z.B. also had a 1.1 centimeter laceration of the liver with edema and slight swelling of each kidney and the adrenal glands. Z.B. also had multiple small bowel intussusception. Finally, Z.B. had injuries to her brain including edema in the layer between her brain and her skull, left subdural hematoma, and a midline shift of the brain approximately six millimeters. Hospital personnel declared Z.B. in critical condition, and the original prognosis was that she would not likely survive due to the swelling of her brain.

         When police questioned Movant, he eventually told them that he had lost his temper when Z.B. had a bathroom accident, and urine leaked from her diaper onto Movant. He admitted punching Z.B. in the gut and that he " slammed the child." He also admitted that during other times when he was with her, he had gotten upset and would pick her up and squeeze her around her rib cage.

         The State charged Movant with three sets of charges for each of three separate injuries to Z.B. Counts I, IV, and VII were the charges of assault in the first degree, abuse of a child, and child endangerment, respectively, all related to the rib fractures Z.B. sustained. Counts II, V, and VII were the same three charges relating to Movant punching Z.B. in the abdomen. Finally, Counts III, VI, and IX related to the slamming of Z.B. so that her head struck a wall or the floor, resulting in her brain injuries.

         At the time of Movant's plea, Z.B. was three years old, and she was the same intellectually that she was at the time she went to the hospital, approximately one year before. She had eye ...


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