Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Charles County Honorable Ted
T. Quigless, P.J.
Terry G. Smith ("Smith") appeals the judgment of
the trial court following a jury trial in which he was
convicted of first-degree endangering the welfare of his
child ("Victim"). Smith's appeal mirrors an
appeal filed by his wife, Victoria Smith ("Wife"),
in this Court,  in which she
raised identical issues. In his appeal, Smith asserts three
points: (1) the State presented insufficient evidence at
trial to support his conviction; (2) the trial court abused
its discretion when it allowed first responders to provide
victim impact testimony during the penalty phase of trial;
and (3) the trial court plainly erred in allowing expert
testimony that keeping Victim in an enclosure posed a
significant risk to his physical, psychological, and
emotional health because it invaded the province of the jury.
We affirm the trial court's judgment.
and Procedural History
reiterate the facts in State of Missouri v. Victoria
Smith, ED103039, 2016 WL 4527588 ("Smith
I"),  in that they are
similar to this appeal. The following facts, when viewed in
the light most favorable to the verdict, were presented at
lived with Wife and their six children, including their
six-year-old son, Victim. Victim is a child on the autism
spectrum. Deondus Towers ("Towers"), a certified
nurse assistant, cared for Victim after school on weekdays
and all day on weekends. Occasionally, Towers cared for
Victim outside of Victim's home. Towers would take Victim
to the mall, to Towers's son's football games, and to
the park. Whenever Victim was with Towers, 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. Victim would often smell of urine when Towers
picked him up from Smith's home, and he had feces on his
body. Towers would often bathe Victim at her home, then take
him home clean. This occurred on more than one occasion.
weekend, Towers was unable to care for Victim. When Towers
resumed her care, she learned that Victim had been kept in an
enclosed bed all weekend. Towers asked Smith to show her
Victim's sleeping arrangements. Towers followed Smith
into the basement, and Towers immediately noticed a foul
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. Smith told Towers that he
modified the bed so Victim would not get out. After seeing
Victim's sleeping arrangements, Towers called the child
Abuse Investigator Kenneth Spellmeyer
("Spellmeyer") and Officer Richard DeWitt
("DeWitt") responded to the hotline call and went
to Smith's home. Merilyn Jones ("Jones"),
Wife's mother, answered the door and explained that she
was caring for the children while the parents were shopping.
Jones, a sixty-nine-year-old, indicated she was unable to go
up or down the stairs due to a recent stroke. Jones admitted
it was difficult to care for the children. When asked about
Victim, Jones explained he was kept in the enclosed bed in
the basement because he is autistic. Jones allowed Spellmeyer
and DeWitt into the basement; the smell of urine was apparent
to them upon entering the home, and became stronger as they
descended into the basement.
basement, Victim was laying naked in his bed because his
diaper had been removed. 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. Spellmeyer
characterized the bed as "exceptionally unsafe."
Jones saw no problem with the bed but admitted not knowing
how to remove Victim 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.
order to remove Victim from the enclosed bed, the officers
had to cut through the zip-ties securing the metal bars. As
they did so, a large amount of urine "poured" out
from the bedding. Paramedics cleaned Victim with towels and
transported him to the hospital.
Marshal Mark Morrison ("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 was unable to 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 diagnosed Victim with autism and is
Victim's primary care physician. Dr. Easterday recognized
that the enclosed bed presented a safety concern had Victim
suffered a medical emergency. Dr. Easterday admitted he would
have called the child abuse hotline if he had seen
Victim's living arrangements in the enclosed bed. Dr.
Easterday opined that sitting in an enclosed bed for three
hours without a caregiver being 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 Spellmeyer, the Children's Division
investigator, as a witness. Defense counsel objected that
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 Spellmeyer to
testify. Spellmeyer testified that he had never
"encountered a family that seemed to disregard care of
the general responsibility for their actions."
Spellmeyer compared this situation to his own brother-in-law,
who is also on the autism spectrum, 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. Sergeant David
Buehrle ("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." Lieutenant Jeff Lange ("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
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.
August 30, 2016, this Court issued an opinion in Smith
I in which we affirmed the trial court's judgment
against Wife. Smith I, 2016 WL 4527588, at *9. The
three issues Smith raises on appeal mirror those raised in
Wife's appeal. Thus, after fully reviewing the record as
it relates to Smith's appeal, we ...