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State v. Smith

Court of Appeals of Missouri, Eastern District, Third Division

December 20, 2016

STATE OF MISSOURI, Respondent,
v.
TERRY G. SMITH, Appellant.

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

          Angela T. Quigless, P.J.

         Introduction

         Appellant 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, [1] 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.

         Factual and Procedural History

         We reiterate the facts in State of Missouri v. Victoria Smith, ED103039, 2016 WL 4527588 ("Smith I"), [2] in that they are similar to this appeal. The following facts, when viewed in the light most favorable to the verdict, were presented at trial:

         Smith 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.

         One 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 hotline.

         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.

         In the 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.

         In 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.

         Fire 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.

         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 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.

         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 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.

         Several 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 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.

         On 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 ...


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