Court of Appeals of Missouri, Eastern District, Fourth Division
Filed Date: 2/23/18
from the Circuit Court of Audrain County Hon. Wesley Clay
Court's own motion, the opinion filed in this case on
January 30, 2018 is hereby withdrawn and a new opinion is to
issue. Respondent's motion to modify and application for
transfer to the Missouri Supreme Court are denied as moot.
Colleen Dolan, Presiding Judge Missouri Court of Appeals
VAN AMBURG, JUDGE.
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.
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
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.
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
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
her trial, Salmon filed a motion to disqualify Assistant
Prosecuting Attorney Andrew Rehmer ("APA Rehiner")
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.
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.
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.
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
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.
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.
of Prior Bad Acts and Juvenile Record (Point VI)
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.
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
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
Q: Would it change your opinion to know that she assaulted
two people last week?
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 ...