Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF HICKORY COUNTY Honorable Michael O.
Hendrickson, Circuit Judge.
JEFFREY W. BATES, J.
case involves the death by hyperthermia of the ten-month-old
son (Infant) of David Abel (Defendant). Infant died because
he overheated in his car seat after he was left in the
family's car on a hot afternoon. Defendant was charged
with committing the class A felony of neglect of a child by
knowingly causing Infant to be placed in a situation in which
the child might suffer physical injury as a result of
neglect, and the child did suffer injury resulting in death.
See §§ 568.060.2,
568.060.5(2). A jury found Defendant guilty of this
offense, and he was sentenced to 14 years in prison. This
presents one point for decision. He contends the
"evidence failed to establish beyond a reasonable doubt
that [he] acted knowingly." We disagree and affirm the
trial court's judgment.
appeal, sufficiency of the evidence is reviewed on the
merits, regardless of whether that issue was raised at trial.
State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc
2015). "Appellate review of sufficiency of the evidence
is limited to whether the State has introduced adequate
evidence from which a reasonable finder of fact could have
found each element of the crime beyond a reasonable
doubt." State v. Lammers, 479 S.W.3d 624, 632
(Mo. banc 2016). An appellate court considers all evidence in
the light most favorable to the verdict, and grants the State
all reasonable inferences. Id. Contrary evidence and
inferences are disregarded. Id. "This is not an
assessment of whether the Court believes that the evidence at
trial established guilt beyond a reasonable doubt but rather
a question of whether, in light of the evidence most
favorable to the State, any rational fact-finder could have
found the essential elements of the crime beyond a reasonable
doubt." State v. Nash, 339 S.W.3d 500, 509 (Mo.
banc 2011) (internal quotation marks omitted); see State
v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010).
August 2015, Defendant and his wife (Wife) were raising three
sons. Wife had a 12-year-old son and a three-year-old son by
another father. Defendant and Wife were the parents of
August 1, 2015, the family went swimming at Pomme De Terre
Lake with a friend, Robert Helmig (Helmig). Defendant loaded
all three children into the family car and drove everyone to
the lake. Wife was in the center of the front seat. Helmig
was in the front passenger seat, and the three boys were in
the back seat. Infant was in a car seat behind the front
passenger seat. Around 2:30 p.m., the group prepared to
return home from the lake. Defendant loaded all three
children into the car.
the group arrived home, Defendant backed onto the driveway
approach to the garage. He exited the vehicle and then got
the two older boys out. Defendant did not take Infant from
the car. Helmig exited the car about the same time as
Defendant. Wife got out of the car "and immediately left
on the 4-wheeler." Helmig did not see anyone remove Infant
from the car. Defendant started unloading some of the
swimming items from the car and set them out to dry. Helmig
went inside the house, called his ride and left about 20
p.m., Defendant called 911. Defendant told the dispatcher,
"I think my baby is dead, he's not breathing."
An EMT arrived at Defendant's house at 5:30 p.m.
Defendant was holding Infant. The EMT observed that Infant
was very hot to the touch, and he was grayish and blackish in
color around the lips and fingernails. Defendant said they
had left Infant in the car 90 to 120 minutes. The EMT
examined Infant and determined that he was deceased. Infant
had died of hyperthermia. Wife returned home, and Defendant
kept repeating "[h]e's dead, he's dead, we
killed him." Wife began hitting, kicking and biting
Defendant and saying that he killed her baby. After police
arrived, Wife was handcuffed and taken to the hospital.
noted above, Defendant contends the State did not present
sufficient evidence that Defendant acted knowingly. Defendant
argues that there was no evidence he knowingly left Infant in
his car seat when they got home. After reviewing the elements
of the charged offense and the evidence favorable to the
jury's verdict, we disagree.
information charged Defendant with violating §
568.060.2(2), which states that "[a] person commits the
offense of abuse or neglect of a child if such person
knowingly causes a child who is less than eighteen years of
age: … (2) [t]o be placed in a situation in which the
child may suffer physical or mental injury as the result of
abuse or neglect." Id. As used in this statute,
"neglect" is defined to mean:
the failure to provide, by those responsible for the care,
custody, and control of a child under the age of eighteen
years, the care reasonable and necessary to maintain the
physical and mental health of the child, when such failure
presents a substantial probability that death or physical
injury or sexual injury would result[.]
§ 568.060.1(4). "A person 'acts
knowingly', or with knowledge, (1) With respect
to his conduct or to attendant circumstances when he is aware
of the nature of his conduct or that those circumstances
exist …." § 562.016.3(1) (bold emphasis in
original). There is "no bright line test" to
determine whether or not a person acted knowingly. State
v. Burrell, 160 S.W.3d 798, 802 (Mo. banc 2005).
"In making this determination, this Court looks to the
totality of the circumstances." Id. "The
State may prove a defendant's knowledge by direct
evidence and reasonable inferences drawn from the
circumstances surrounding the incident." Id.
Defendant returned home from the lake, Infant was strapped
into his car seat, unable to get out of it or the car on his
own. Defendant got the older boys out of the car, but knew
that he had not gotten Infant out of the car. We must credit
his statement that Wife got out and immediately left on the
4-wheeler, so he knew she did not get Infant out either.
Helmig, having seen no one take Infant from the car, left 20