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State v. Balbirnie

Court of Appeals of Missouri, Western District, First Division

March 13, 2018

STATE OF MISSOURI, Respondent,
v.
ANTHONY J. BALBIRNIE, Appellant.

         Appeal from the Circuit Court of Cooper County, Missouri The Honorable Donald L. Barnes, Judge

          Before: Thomas H. Newton, Presiding Judge, and Victor C. Howard and Karen King Mitchell, Judges

          OPINION

          KarenjKing Mitchell, Judge

         Anthony Balbirnie appeals, following a jury trial, his convictions of second-degree (felony) murder (§ 565.021), [1] second-degree statutory rape (§ 566.034), tampering with physical evidence (§ 575.100), and abandoning a corpse (§ 194.425). Balbirnie raises two claims on appeal, both challenging the sufficiency of the evidence to support his convictions. In his first point, Balbirnie argues that the State failed to prove that the underlying felony of second-degree statutory rape caused Victim's death for purposes of his conviction of felony murder. In his second point, Balbirnie argues that the State failed to prove that he knew Victim was under the age of 17 to support his conviction of second-degree statutory rape. Finding no error, we affirm.

         Background[2]

         On September 20, 2012, Victim (born on July 19, 1997) lived with her grandparents on their farm in Willard, Missouri. Around 4:00 p.m. that day, Victim asked her grandmother if she could invite a boy over to ride horses; when her grandmother said she could not, Victim left the home on foot. Grandmother thought Victim was simply blowing off steam, but when Victim was still gone the next morning, Grandmother grew concerned and tried to file a missing person's report. But, because Victim had been gone for fewer than forty-eight hours, the report could not be filed. Grandmother contacted as many people as she could, trying to locate Victim but to no avail, and Grandmother hung fliers all around. On September 30, 2012, Victim's body was found floating in Truman Lake in Warsaw, Missouri, near Mile Long Bridge; it was wrapped in a blanket with tape, zip ties, and orange electrical cord, with a white trash bag over Victim's face, and attached to a post-driver and part of a railroad iron rail.

         Grandmother identified Victim's body, and an autopsy was conducted the following day. The autopsy revealed a large volume of liquid in Victim's lungs that was not attributable to the lake in which she was found. Instead, the medical examiner believed the excess fluid to be evidence of pre-mortem pulmonary edema, a build-up of fluid in the lungs that results when a person is not breathing properly, whether from a brain injury or otherwise.

         A week or two before Victim disappeared, Gwenda Bradshaw (a friend of Balbirnie) received a call from Balbirnie, seeking a ride. When Bradshaw went to pick Balbirnie up, Victim was with him; Bradshaw had never met Victim before and asked her how old she was. Victim stated she was nineteen, but Balbirnie indicated she was twenty-one. Bradshaw took Balbirnie and Victim to a friend's house, where Balbirnie and Victim "friended" each other on Facebook. Victim's Facebook page indicated she was fifteen years old.

         In the early evening of September 20, 2012, a few minutes before 6:00 p.m. and after Victim left Grandmother's home, Richard Chamberlain, a resident of Springfield, Missouri (approximately five miles from Willard), encountered Victim-who appeared to be fourteen or fifteen years old-walking outside his home. Chamberlain had never seen Victim before, but she stopped at his house and asked to use his phone. Victim had the phone for a minute or two before handing it back to Chamberlain, stating that whomever she was trying to reach was not answering the phone. Victim then left Chamberlain's home, walking down the street. Shortly before 6:30 p.m., Chamberlain received a return phone call from the number Victim had tried to reach; it was a male voice, wanting to know who had tried to contact him from Chamberlain's number. Chamberlain advised that it had been a young lady walking down the street. The caller asked Chamberlain where he was located and which direction Victim had gone. The phone number was later identified as belonging to Balbirnie's cell phone.

         Sometime around 2:00 a.m. on September 21, 2012, Larry Warner (another friend of Balbirnie) picked up Balbirnie and Victim in Springfield and drove them to Amy Hartley's house in Buffalo, Missouri, for the purpose of "partying, " which Warner defined as doing drugs and having sex. Though Warner had never met Victim, Balbirnie had spoken of her before and indicated that they had a sexual relationship. The group arrived at Hartley's home around 2:45 a.m. on September 21, 2012.

         Upon their arrival, Balbirnie introduced Victim to Hartley and told Hartley that Victim was twenty-two years old. Victim asked Hartley to borrow a dress and then took a shower. While Victim was in the shower, Warner, Hartley, and Balbirnie got high on methamphetamine. After Victim got out of the shower, she went to the back bedroom and told Balbirnie, "Come on, if we're going to do this, " prompting Balbirnie to follow her. At some point, Balbirnie emerged from the bedroom, completely naked with an erection, and invited Warner into the bedroom to watch, saying, "If you want to come back here, you can come back here, but you ain't touching her, you know what I'm saying?" Warner declined the invitation and left shortly thereafter.

         After Warner left, Hartley went to her own bedroom. Balbirnie and Victim, both naked, then entered Hartley's bedroom and solicited Hartley to participate in sexual activities with them. Hartley initially refused but eventually assented, allowing Balbirnie and Victim to remove Hartley's pants and perform oral sex on her. Shortly thereafter, Hartley became uncomfortable, redressed, and went back into the living room. While in the living room, Hartley heard Balbirnie and Victim having sex against her bedroom door, causing it to make a banging noise. Hartley went back to the bedroom and told Balbirnie and Victim to go somewhere else, so they went into the living room, where Hartley observed them engaging in more sexual acts. Hartley encouraged them to go into the back bedroom, and she went to her own bedroom.

         Sometime later, Hartley heard a loud noise and left her room to investigate. Balbirnie came out of the bedroom, wearing only shorts and looking "frazzled." Balbirnie kept going in and out of the back bedroom, and Hartley eventually followed him back there, where she saw Victim lying naked on the bed, shaking and seizing. Hartley approached Victim and asked if she was ok. Victim put her hands around her neck, "like she was choking, " while she continued to shake and seize. Hartley told Balbirnie to call for an ambulance, but Balbirnie responded, "Fuck no, bitch." Hartley insisted they call, telling Balbirnie that Victim was dying. Victim eventually stopped shaking and seizing, at which point, Hartley checked her pulse and found that she had none. Hartley told Balbirnie to give Victim CPR, and when he did, Victim's body convulsed and water came out of her mouth. The CPR was unsuccessful, and Victim became still and unresponsive. Hartley asked Balbirnie, "What have you done?" Balbirnie responded, "She's been doing that for hours."

         Balbirnie told Hartley, "We need to douche this bitch out" because he had ejaculated inside Victim. He then redressed Victim in the dress she had borrowed from Hartley, wrapped Victim's body in a blanket from the bed, and asked Hartley to get him some tape and a rope or cord. Hartley complied and brought Balbirnie a white trash bag, some tape, and an orange electrical cord. Balbirnie put the trash bag over Victim's head and then wrapped the cord around the blanket to keep it in place. Balbirnie carried Victim's body to the garage and put it in the trunk of Hartley's car. He then directed Hartley to "get [him] something to weight her down." Hartley suggested Balbirnie look in the sheds outside the house. Balbirnie returned from one of the sheds with a post-driver and a piece of railroad track, which he tied to Victim's body before instructing Hartley to get in the car; the two then drove around, looking for a body of water.

         The pair first traveled to Pomme de Terre River, but, when they got there, Balbirnie remarked, "There's not enough water here, " so they drove to Mile Long Bridge over Truman Lake. After they stopped on the bridge, Balbirnie got out of the car and looked down at the water. He told Hartley, "I'm going to throw her out." Balbirnie threw Victim's body off the bridge into the water, and he and Hartley drove away.

         Balbirnie and Hartley eventually returned to Hartley's home, where Balbirnie gathered up Victim's clothing, put it in a trash bag, and drove away with the items in Hartley's car. Before doing so, however, he requested some bleach and used it to wipe down the bed where Victim had died. Balbirnie also advised Hartley to wash the bedding and not to call the police.

          A few days later, Balbirnie was in a motel room, using drugs with Kayla Alexander in Springfield, Missouri. Balbirnie was behaving abnormally, prompting Alexander to ask him what was going on. Balbirnie then said that he had gotten high and had sex with a fifteen-year-old girl, during which he choked and killed her.

         Victim's autopsy revealed no drugs in her system and only a small amount of alcohol, which was attributable to decomposition. Though the medical examiner was unable to testify to a cause of death, he acknowledged that Victim's death could have resulted from cerebral asphyxiation occurring in a manner consistent with the events Balbirnie had described to Kayla Alexander. The medical examiner testified that compression of the veins in the neck prohibits blood from traveling to the brain, which then deprives the brain of oxygen and other nutrients, resulting in cerebral asphyxiation, a condition that can cause seizures and pulmonary edema.

         The jury found Balbirnie guilty as charged, and the court sentenced him, as a prior offender, to thirty years for felony murder and fifteen years for statutory rape, to run consecutive to each other and to concurrent terms of five years for tampering with physical evidence and five years for ...


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