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State v. Richter

Court of Appeals of Missouri, Western District, Fourth Division

November 22, 2016


         Appeal from the Circuit Court of Cole County, Missouri The Honorable Patricia S. Joyce, Judge

          Before Mark D. Pfeiffer, Chief Judge, Presiding, Karen King Mitchell, Judge and Gary D. Witt, Judge

          Gary D. Witt, Judge

         Appellant Shelley Richter ("Richter") appeals her conviction of endangering the welfare of a child in the first degree, section 568.045.[1] Following a jury trial, she was convicted and sentenced to five years' imprisonment by the Circuit Court of Cole County. On appeal, Richter alleges that the circuit court erred in denying Richter's motion for judgment of acquittal at the close of State's evidence because there was insufficient evidence to support her conviction. Further, she claims that the court erred in submitting "disjunctive acts" in the verdict director, giving the jury a "roving commission." We affirm Richter's conviction.

         Factual and Procedural Background[2]

         The victim, L.S., was born in January, 2010, a month premature. However, he was thriving and, at his six-month wellness visit, he met all expected milestones. Other than a hospitalization in March 2010 for a respiratory virus and other common childhood illnesses, he was a healthy baby. There was no evidence that L.S. had suffered any significant injuries.

         When L.S. was about ten-weeks-old, he was placed in the care of Richter, who ran a licensed child daycare from her home. On August 19, 2010, L.S.'s mother ("Mother") took him to daycare. She testified that he was alert and active when she dropped him off at approximately 9:00 a.m.

         According to Richter's statements to police, shortly before 12:30 p.m. Richter picked up L.S. out of a walker in order to feed him lunch. As she picked him up, she was in the process of bringing him to her side and stepping backwards when another child came up behind her and caused her to lose her balance. Richter fell to the floor and, as she did, she lost her grasp of L.S. who fell onto the floor. The floor was concrete covered with linoleum. Richter said that she went to L.S., and that L.S. was on his right side and crying. She picked him up, and L.S. stopped moving. She attempted to rouse him by blowing in his face but L.S.'s head went limp and she believed he had broken his neck. Richter called her neighbor, Dawn Wilde, who worked from home and was the mother of another child. Wilde came immediately and instructed Richter to call 911. Wilde called Mother instructing her to come to the daycare.

         At approximately 12:30 p.m., Mother received a phone call from Wilde reporting that there had been an accident with L.S., an ambulance was on the way, and Mother should come immediately. When Mother arrived, L.S. was lying on the floor in the back of the daycare. He was pale, his eyes were barely open, he was making odd squeaking and moaning sounds, having trouble breathing, and was moving his arms in a circular pattern. When the ambulance arrived about 20 minutes later, L.S. was placed on a backboard and transported to the local emergency room at Capital Regional Hospital in Jefferson City. Emergency room personnel immediately called for a life flight transport to take L.S. to University Hospital in Columbia, Missouri. L.S. was in serious condition with bleeding in his brain, hemorrhaging in both eyes, and the lowest possible score on the Glasgow coma scale. He was intubated to help him breath.

         Both Mother and L.S.'s father ("Father") drove to University Hospital from Jefferson City. Dr. Craig Downs ("Dr. Downs") treated L.S. in the University Hospital Emergency Room. Dr. Downs disagreed with the "initial history" he had received, opining that the type of injuries that L.S. was suffering were "not at all compatible" with the fall as described. Dr. Downs believed the injuries were caused by "abusive head trauma" that occurred "very recent" to L.S.'s arrival at the hospital. L.S. was admitted to the Pediatric Intensive Care Unit.

         The next day, L.S. was seen by Dr. Nitin Patel ("Dr. Patel"), a pediatric neurologist. Dr. Patel testified that L.S. had slowed brain activity, especially on the left side. A MRI scan showed a lack of blood supply to the brain that would have happened within three days prior to the scan. L.S. also had intracranial bleeding and optic nerve swelling. Dr. Patel believed that L.S. "must have suffered what is called a shaken baby syndrome or non-accidental head trauma."

         Dr. Joseph Giangiacomo ("Dr. Giangiacomo"), a pediatric ophthalmologist, also examined L.S. finding that L.S. had bilateral hemorrhages in his eyes as well as an extensive amount of blood in his eyes that ultimately necessitated surgery. Further, it was Dr. Giangiacomo's opinion that the injuries were not caused by an accident.[3]

         As a result of his injuries, L.S. developed Cerebral Palsy, is developmentally delayed, is "more or less blind, " and will require assistance for the remainder of his life.

         The jury found Richter guilty of endangering the welfare of a child. The court sentenced her to five ...

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