Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Charles County Honorable Ted
S. ODENWALD, Judge
Appellant Victoria Smith ("Smith") appeals from the
judgment of the trial court following a jury trial in which
she was convicted of first-degree endangering the welfare of
her child ("Victim"). Smith contends there was
insufficient evidence to support her conviction. She also
argues that the trial court erred in allowing expert
testimony regarding the significant risk to Victim's
physical, psychological, and emotional health, and testimony
from emergency personnel who responded to Smith's home.
The totality of the evidence supported a finding that Smith
knowingly acted in a manner that created a substantial risk
to Victim; thus, the evidence was sufficient to support her
conviction. Because the trial court did not err in admitting
the expert testimony or the testimony of emergency personnel
who arrived at the scene, the trial court's judgment is
and Procedural History
following facts, when viewed in the light most favorable to
the verdict, were adduced at trial:
Smith lived with her husband and their six children,
including their six-year-old son ("Victim"). Victim
suffered from a form of autism. Deondus Towers
("Towers"), a certified nurse assistant, cared for
Victim after school on weekdays and all day on weekends.
usually cared for Victim away from Victim's home. For
example, Towers and Victim would go to the mall, attend the
football games of Towers's son, and go to the park. When
Towers picked Victim up from home, he would smell badly, and
Towers would bathe him. Throughout Towers's time with
Victim, Victim was well behaved. Victim acted like a
"typical kid" at Towers's home; he used the
bathroom, slept in Towers's son's bed, and ate at
restaurants without incident.
weekend, Towers was unable to care for Victim. When Towers
resumed her care, Smith told Towers that Victim had been kept
in the enclosed bed ail weekend. This information concerned
Towers, who realized that Victim would resist going to sleep
in the basement "95 percent of the time" when she
would return Victim to his home. Towers asked to see
Victim's sleeping arrangements. Smith allowed Towers into
the basement, and Towers immediately noticed a smell. Towers
characterized the smell as worse than monkeys at the zoo.
Towers noticed that the top of Victim's bed was enclosed
to prevent escape and that there was no access to the bed in
case of an emergency. Towers called the child-abuse hotline
after seeing Victim's sleeping arrangements.
Abuse Investigator Kenneth Spellmeyer ("Investigator
Spellmeyer") and Officer Richard DeWitt ("Officer
DeWitt") responded to the hotline call and went to
Smith's home. Smith's mother, Merilyn Jones
("Jones") answered the door and explained that she
was caring for the children while Smith and her husband were
grocery shopping. Jones, a 69-year-old diabetic, could not
climb the stairs because of mobility issues due to a recent
stroke. Jones admitted that it was difficult to care for the
children. When asked about Victim, Jones explained that he
was kept in the enclosed bed because he was autistic. Jones
allowed Investigator Spellmeyer and Officer DeWitt into the
basement; the smell of urine was apparent to them upon
entering the home, and became noticeably stronger as they
descended into the basement.
basement, Victim was laying naked in his bed, as he had
removed his diaper. A metal structure enclosed the top of the
bed, which measured three feet high, three feet wide, and six
feet long. Zip-ties, rope, and plywood secured the metal
bars. Feces and urine covered the bed. Investigator
Spellmeyer characterized the bed as "exceptionally
unsafe." Jones did not see a problem with the bed, but
she admitted not knowing how to remove Victim from the bed in
the event of an emergency. Two of Victim's siblings
stated that Victim rarely left the enclosed bed. The family
fed Victim hot dogs or chicken nuggets through the metal
attempted to remove Victim from the enclosed bed, but were
unable to do so without cutting through the zip-ties securing
the metal bars. Urine streamed from the bedding as the
officers deconstructed the enclosure on the bed. Paramedics
cleaned Victim with towels and transported him to the
Marshal Mark Morrison testified at trial that the basement
was inappropriate for a bedroom because the basement's
windows did not permit egress if a fire occurred. Recognizing
that Victim could not get out of the enclosed bed, Morrison
opined that the enclosed bed would have hampered a rescue
attempt in the event of a fire.
State also called Dr. John Constantino ("Dr.
Constantino"), a professor of psychiatry and pediatrics,
as an expert witness. Dr. Constantino testified regarding the
relationship between environmental factors and the severity
of autism, emphasizing that the ability of autistic children
to adapt is "profoundly influenced" by their
environment. In addition to exposure to infectious diseases,
Dr. Constantino opined that Victim's environment likely
exacerbated his condition and-to a reasonable degree of
medical certainty-posed a significant risk to his physical,
psychological, and emotional health and well-being. Defense
counsel objected to this testimony, arguing that Dr.
Constantino was "invading the province of the
jury." The trial court overruled the objection.
David Easterday ("Dr. Easterday") testified for the
defense. Dr. Easterday had diagnosed Victim with autism and
continued as his primary care physician. Dr. Easterday
recognized that the enclosed bed presented a safety concern
had Victim suffered a medical emergency. Had he seen
Victim's living arrangements in the enclosed bed, Dr.
Easterday admitted that he would have called the child abuse
hotline. Dr. Easterday opined that sitting in an enclosed bed
for three hours without a caregiver able to remove Victim
would have endangered Victim.
convicted Smith of first-degree endangering the welfare of a
child. After the jury's guilty verdict, the case
proceeded to the penalty phase for jury sentencing.
State called Investigator Spellmeyer, the Children's
Division investigator, as a witness. Defense counsel objected
that Investigator Spellmeyer's testimony was improper
because he was not a victim, was not related to the victim,
and was not able to testify about Smith's character or
personal history. The trial court, over frequent objections,
allowed Investigator Spellmeyer to testify. Investigator
Spellmeyer testified that he had never "encountered a
family that seemed to disregard care of the general
responsibility for their actions." Investigator
Spellmeyer compared this situation to his own brother-in-law,
who was also autistic, and stated that he thought of this
case every time he walked past a dog cage.
additional emergency personnel testified over objection about
how this case had affected their lives. Police Officer David
Buehrle ("Officer Buehrle") testified, "[This
case] played a part of my decision to retire a year later.
This gets old, it gets tiring, and I didn't want to see
it anymore." Police Officer Jeff Lange ("Officer
Lange") recounted how this case made him break down and
how he would never forget the first sight of Victim.
Paramedic Greg Pendleton ("Pendleton") testified
that he would never forget Victim: "So any time I see a
child with any disability, not just autism, I see [Victim].
And I-it's been a long time. And my one greatest wish was
to find some closure. And today that has been granted to
me." Paramedic Lisa Cassidy ("Cassidy")
expressed similar feelings, "[there are] some things you
can't unsee ... in sixteen years, I've never seen
anything like that. It was inhumane to me. And I've seen
a lot of things."
jury recommended the maximum sentence of seven years'
imprisonment and a fine to be determined by the trial court.
The trial court accepted the recommendation of seven years
and imposed a $500 fine. This appeal follows.
raises three points on appeal. First, Smith argues that the
trial court erred in overruling defense counsel's motion
for judgment of acquittal because the evidence was
insufficient to convict her for endangering the welfare of a
child. Specifically, Smith asserts that the State failed to
prove that she knowingly created a substantial risk to the
life, body, and health of Victim. Second, Smith argues that
the trial court plainly erred in overruling her objection to
Dr. Constantino's testimony regarding the significant
risk Victim's environment posed to his physical,
psychological, and emotional health. Specifically, Smith
asserts that the testimony improperly invaded the province of
the jury on an ultimate issue of whether the crime had
occurred. Third, Smith argues that the trial court abused its
discretion in allowing Investigator Spellmeyer, Officer
Buehrle, Officer Lange, Pendleton, and Cassidy to testify
about their experiences during the penalty phase of the
trial. Specifically, Smith asserts that those witnesses were
precluded from testifying because they were not victims or
members of the victim's family.
I.Point One-Sufficiency of ...