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State v. Salmon

Court of Appeals of Missouri, Eastern District, Fourth Division

January 30, 2018

STATE OF MISSOURI, Plaintiff/Respondent,
v.
JOHNETTA SALMON, Defendant/Appellant.

         Appeal from the Circuit Court of Audrain County Hon. Wesley Clay Dalton

          OPINION

          LISA VAN AMBURG, JUDGE

         Johnetta Salmon appeals the trial court's judgment after a jury convicted her of endangering the welfare of a child in the first degree. We reverse and remand for a new trial.

         Factual Background

         Appellant Johnetta Salmon ("Salmon") was charged with one count of endangering the welfare of a child and one count of neglect of a child, or in the alternative, abuse of a child. Salmon was charged with endangering the welfare of her infant son "Baby M." on or between February 26 and May 30, 2014 by failing to provide Baby M. with adequate nutrition. She was also charged with neglecting or abusing Baby M. in relation to a broken arm he sustained on or between May 1 and May 30, 2014, a charge of which the jury found her not guilty.

         Baby M. was born to Salmon and Monte Ashcraft ("Ashcraft") on February 26, 2014. Salmon was 18 years old when she delivered Baby M., her first child. Salmon took Baby M. to the pediatrician at least seven times between February 27 and May 13, 2014. Although Baby M. showed appropriate weight gain at two of these visits, Baby M.'s pediatrician discussed with Salmon proper feeding techniques during four visits, due to Baby M.'s poor weight gain, or weight loss.

         On May 30, 2014, Salmon and Ashcraft took Baby M. to the Mexico Audrain Medical Center emergency room. Hospital personnel found that Baby M. had a broken arm and transferred him to the Women's and Children's Hospital in Columbia due to suspected child abuse. There, doctors also found rib fractures and determined that the arm and rib fractures were consistent with abuse. In addition, personnel at the Women's and Children's hospital noted that Baby M. was severely underweight, lacked appropriate muscle tone, and showed developmental delay for a baby of his age, length, and head circumference. Because Baby M. did not exhibit any conditions that might prevent him from gaining weight or absorbing calories, and regular feedings at the hospital resulted in weight gain, doctors concluded that Baby M.'s malnourishment was the result of being inadequately fed. Additional facts relevant to the points on appeal appear below.

         Procedural Background

         Salmon and Ashcraft were charged in separate indictments. Salmon's case was initially set for trial on January 21, 2015. Her case was continued several times during 2015, before the prosecution filed a Motion for Joinder in February 2016. The trial court granted the motion, entering an order to consolidate for jury trial purposes, and setting the trial date for June 22, 2016. Later, Ashcraft and the State agreed to try the case against Ashcraft on May 16, rather than the initial setting of June 22. When Salmon's defense counsel learned of the change to Ashcraft's trial date, he informed the court and prosecutor that he would not be ready to proceed to trial on Salmon's case in May. Defense counsel asked whether Ashcraft's trial date change would affect Salmon's trial date, and requested that Salmon's trial remain set for June 22. The court and State agreed that only Ashcraft would be tried in May, and Salmon's trial date would remain June 22. Ashcraft's trial proceeded in May, and a jury found him guilty of endangering the welfare of a child and abuse of a child. Following Ashcraft's guilty verdict, Salmon filed a motion to dismiss, alleging double jeopardy from a failure to properly sever the cases of Ashcraft and Salmon. The motion was denied.

         Before her trial, Salmon filed a motion to disqualify Assistant Prosecuting Attorney Andrew Rehmer ("APA Rehmer") for conflict of interest due to his positions as both the prosecuting attorney in the present case and counsel for the circuit juvenile office in a separate action to terminate Salmon's parental rights to Baby M. The motion to disqualify was denied.

         Before trial, Salmon filed a motion in limine to exclude evidence of Ashcraft's guilty verdicts. At trial, during examination of an expert witness, Dr. Beal, the State sought to admit an audio police interview with Ashcraft. Dr. Beal testified to the bone fractures Baby M. sustained. Salmon objected to the admission of the police interview of Ashcraft on the grounds that it was not relevant. The trial court allowed admission of both Ashcraft's guilty verdicts and police interview.

         Before trial, Salmon filed a motion in limine to preclude evidence of prior bad acts. The trial court ruled that Salmon's prior bad acts could only be used for impeachment. During the cross-examination of Salmon's half-brother Mr. Hooker, APA Rehmer raised the subject of Salmon's prior bad acts and of Salmon's juvenile court record. Salmon had not elicited evidence of her good character from the witness, nor is there any indication in the record that APA Rehmer notified the court or opposing counsel of his intent to use Salmon's confidential juvenile record in his cross-examination. The trial court sustained Salmon's objection to the question about her uncharged acts as a juvenile, and denied Salmon's motion for a mistrial at the end of the cross-examination.

         Before trial, Salmon's counsel orally moved in limine to preclude the State from demonstrating the filling of baby bottles throughout the trial. The trial court ruled that it would allow such a demonstration if proper foundation was laid. The State failed to lay a proper foundation for the demonstrations or make note of the demonstrations on the record. In the State's closing argument, however, APA Rehmer asserted that he did fill baby bottles throughout the trial.

         The jury found Salmon guilty of endangering the welfare of a child in the first degree, and not guilty of abuse or neglect of a child. She was sentenced to three years' imprisonment. This appeal follows.

         Analysis

         Point I concerns sufficiency of the evidence, which we find in favor of the State. Point VI, however, is determinative of the disposition of this appeal, and on this point we reverse and remand for a new trial. For ease of analysis, we address Point VI first, followed by Point V. Next, we address our denials of Points I and VII. Although we need not and do not reach Point IV, we provide guidance for consideration on remand. We need not and do not reach Points II and III.

         Introduction of Prior Bad Acts and Juvenile Record (Point VI)

         For her sixth point, Salmon argues that the trial court erred in denying her motion for a mistrial after the State disclosed information about prior bad acts and her juvenile record during its cross-examination of Mr. Hooker, Salmon's half-brother who was granted custody of Salmon at age 14.

         Mr. Hooker testified for the defense that, during the first three months of Baby M.'s life, he observed Baby M. with Salmon about every other day. Mr. Hooker testified that "it seemed like the baby always had a bottle in his mouth, " and that he never saw anything that indicated that Baby M. was being abused by either Salmon or Ashcraft. Then, during APA Rehmer's cross-examination, the following exchange occurred:

Q [APA Rehmer]: And do you think she did this?
A [Mr. Hooker]: I do not.
Q: Do you think she's the type of person that would do that?
A: No.
Q: Would it change your opinion to know that she assaulted two people last week?

         Defense counsel objected and a bench conference took place:

Defense Counsel: That's not even a prior conviction. That's a pending case and that's going to the character of violence.
APA Rehmer: He said she'd never do it.
Defense Counsel: He didn't say never do it.
APA Rehmer: No, he said -
The Court: He said -
Defense Counsel: To your question . . . You can't open the door for yourself.

         The court overruled the objection and APA Rehmer's cross-examination of Mr. Hooker continued:

Q: Would it change your opinion of that?
A: What's that?
Q: Her assaulting two of her family members last week. Would it change your opinion of whether she could hurt Baby Monte or not?
A: [I]s self-defense considered assaulting two other people?
Q: Okay. And you know what her prior juvenile was, record was ...

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