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State v. Smith

Court of Appeals of Missouri, Eastern District, Fourth Division

August 30, 2016

STATE OF MISSOURI, Respondent,
v.
VICTORIA SMITH, Appellant.

         Appeal from the Circuit Court of St. Charles County Honorable Ted House

          KURT S. ODENWALD, Judge

         Introduction 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 affirmed.

         Factual and Procedural History

         The 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.

         Towers 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.

         One 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.

         Child 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.

         In the 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 bars.

         Officers 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 hospital.

         Fire 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.

         The 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.

         Dr. 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.

         A jury 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.

         The 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.

         Several 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."

         The 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.

         Points on Appeal

         Smith 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.

         Discussion

         I.Point One-Sufficiency of ...


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