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State v. Usnick

Court of Appeals of Missouri, Western District, Second Division

June 18, 2019

STATE OF MISSOURI, Respondent,
v.
EMILY USNICK, Appellant.

          Appeal from the Circuit Court of Johnson County, Missouri The Honorable John R. O'Malley, Judge

          Before: Cynthia L. Martin, Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

          OPINION

          GARY D. WITT, JUDGE

         Emily Usnick ("Usnick") was convicted of first degree involuntary manslaughter following a jury trial in the Circuit Court of Johnson County. The jury found that Usnick was responsible for the death of her newborn daughter ("Baby Usnick") during an at-home, medically unattended birth. As charged, the State contended that Usnick recklessly caused the death of Baby Usnick "by giving birth to said child unattended and failing to secure assistance and medical attention for said child following birth and by enclosing said child in a plastic bag and container." The court sentenced Usnick to five years in the Department of Corrections. Usnick brings seven allegations of error on appeal. Because the State's evidence did not establish a corpus delicti as to any of the bases on which Usnick was charged, we are required to reverse her conviction of first degree involuntary manslaughter as a matter of law.

         Factual Background

         Usnick was an unmarried mother of three when she became pregnant in 2008. Two months before Baby Usnick was born, Usnick and her son moved into her uncle's home in the city of St. Elizabeth in Miller County. Usnick's uncle shared the home with five other people as well as others who stayed temporarily. Usnick had little interaction with the other occupants of the house; none knew that she was pregnant. Usnick did not have a working car or a job.

         Usnick testified that she planned to give birth in a hospital and put the baby up for adoption through the hospital because she knew she could not care for another child. On January 15, 2009, Usnick went into labor while home alone. In a July 6, 2009 written statement to detectives ("Statement"), Usnick admitted smoking methamphetamine and marijuana the night before the birth. In her Statement she described Baby Usnick's birth as follows:

On the night of January 15, 2009, I gave birth to Hannah Eden Usnick. The night prior to, I smoked meth and marijuana. That evening, I wasn't feeling well. My stomach was cramping really bad. I had started a load of laundry and when I came out of the laundry room into the hallway, my water broke. The house was back [sic] - the house was dark and silent. I went a few steps into the bathroom and pulled off my pants and underwear. I sat on the stool with one hand - right hand in parenthesis - on the countertop and my left hand on the edge of the bathtub.
My pain was getting greater and the contractions were coming one right after another. I had an overwhelming urge to push, so I did, hard. I felt the head start coming, so I pushed again. The head was out. I continued pushing with the pains. Her body came out and landed in the toilet. When I started to turn and look at the baby, she was laying on her right side. Her head was toward the back of the toilet and her feet were at the front. I started feeling sick, my stomach was tightening. I knew from prior births that the placenta was going to be coming. I continued to straddle the toilet, right hand on the counter and left hand on the side of the bathtub. It was about three minutes maybe from the time Hannah came out and the placenta was delivered.
After the placenta and everything else came out, my body was in shock, I was tired and hurting. It must have been four or five minutes before I brought myself to pull off of the stool. By then, everything and Hannah in such a small area, the liquid had - the liquid had rose in level. That is when I pulled her out of the toilet. I held her to my chest only for a minute. She wasn't moving, wasn't breathing. I was so scared. I pulled the waste paper basket closer to me and laid her in the top of it. She was - she was closer to me then rather than on the floor.
I sat on the stool and just looked at her. She was so beautiful. I really hate that things turned out this way. I wanted her to have a life, a good life and that is why I had the intention of putting her up for adoption. I will forever regret the poor decisions I've made not only leading up to that night, but especially that night. I have come to believe that it is possible with the time frame that Hannah may have drowned or suffocated while she was submerged in the water.[1]

         This Statement was consistent with Usnick's trial testimony except that at trial she testified that she removed the baby from the toilet before she passed her placenta. At trial, Usnick testified that, immediately following the delivery, the baby was not moving, breathing, or crying, and she did not feel or see any signs of life. Usnick described the baby as "pink and a little blue . . . just silent and still." She believed Baby Usnick was "gone." Usnick placed the baby on a waste basket next to the toilet. After delivering the placenta, Usnick testified that she was unable to stand for several minutes. When she was able to move, Usnick placed the placenta in the waste basket with Baby Usnick and went to her room to get dressed. She then returned to the bathroom and placed the body in a plastic bag and placed the bag inside a tote and placed the tote in the trunk of her inoperable car. At that time she did not tell anyone that she had given birth or that the baby was dead. At the beginning of February, a former boyfriend, whom she had previously told that she was pregnant and he was the father, asked about the baby. She told him that she had given the baby to a cousin in Mexico, Missouri to adopt. He pointed out that he had not signed away his parental rights and wanted to see his child.

         On February 3, 2009, while serving a search warrant in an unrelated methamphetamine investigation, police discovered the body of Baby Usnick in the trunk of the car. Usnick initially denied having been pregnant or giving birth.

         In explaining why she did not seek medical attention, Usnick testified that her car was broken down, that she did not have minutes on her cell phone to call for help and, even if her cell phone had been available, there was inconsistent cell service at that house. She also testified that she was shaky from the delivery and it would have taken her between three to five minutes to reach a neighbor's house. The State was able to show that she sent several text messages using her cell phone until 7:57 p.m. on January 15, 2009, the day of the birth. Usnick also testified that the nearest emergency services were approximately 20 minutes from her location. There was, however, an ambulance substation located approximately 3/4 a mile away.

         Usnick was charged by Information with second degree murder.[2] The State contended in the Information that Usnick recklessly caused the death of Baby Usnick "by giving birth to said child unattended and failing to secure assistance and medical attention for said child following birth and by enclosing said child in a plastic bag and container." The Information did not charge Usnick with drowning Baby Usnick.

         At trial, the State presented the testimony of three physicians regarding Baby Usnick's death. Dr. Carl Stacy ("Dr. Stacy") performed the autopsy on Baby Usnick. Dr. Douglas Miller ("Dr. Miller") performed an analysis of Baby Usnick's brain as part of the autopsy. Dr. Christopher Long ("Dr. Long") ...


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