State Of Mo. v. Osborn

• Decision Date: 31 August 2010
• Docket Number: No. SD 29677.,SD 29677.
• Citation: 318 S.W.3d 703
• Parties: STATE of Missouri, Plaintiff-Respondent,v.Jason D. OSBORN, Defendant-Appellant.
• Court: Missouri Court of Appeals

318 S.W.3d 703

STATE of Missouri, Plaintiff-Respondent,v.Jason D. OSBORN, Defendant-Appellant.

No. SD 29677.

Missouri Court of Appeals,

Southern District,

Division Two.

May 14, 2010.

Motion for Rehearing and Transfer

Denied May 27, 2010.

Motion for Rehearing and Transfer

Denied June 4, 2010.

Application for Transfer Denied

Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED

Craig A. Johnston, Columbia, MO, for Appellant.

Chris Koster, Attorney General and Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, Presiding Judge.

Jason D. Osborn (“Defendant”) appeals the trial court's judgment convicting him of three counts of endangering the welfare of a child, pursuant to section 568.045,¹ one count of enticement of a child, pursuant to section 566.151,² and two counts of felony murder in the second degree, pursuant to section 565.021.³ Defendant claims that he was erroneously denied his right to self-representation and that the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence for insufficiency of the evidence as to each count. We affirm in part and reverse in part.

Factual and Procedural Background

We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment and disregard all contrary evidence and inferences. State v. Power, 281 S.W.3d 843, 845 (Mo.App.2009). In that light, the following was adduced at trial.

During the relevant time period, May 2003 to August 2003, Defendant was thirty-six years old and an employee at the Beachhouse Café in Rockaway Beach. He is the first cousin of the stepfather of J.S., one of the victims in this case. That spring, J.S. introduced three of his friends-B.B., J.M., and D.R., all of whom are also victims in this case-to Defendant. In May 2003, all four boys were either fourteen or about to turn fourteen.

The first night the boys met Defendant, he asked them to help him clean up at the restaurant; the group cleaned the counters, took out the trash, and crushed some boxes. While in the basement crushing boxes, Defendant “made some pretty vulgar statements” and “kind of spooked” the boys. B.B., in particular, thought that Defendant was “weird” and “perverted.” Yet the group of boys hung around Defendant fairly often that summer, primarily because Defendant bought the boys alcohol, “horny goat weed pills,” and cigarettes. Defendant never imbibed himself, however, and told the boys that he was a preacher. In that regard, Defendant referenced Bible verses that he claimed said “it was okay to be gay or something like that.”

Early in the summer, B.B.'s older brother caught Defendant buying the boys beer. B.B.'s brother and a friend physically pushed Defendant and told him to stay away from the boys, and Defendant “disappeared” for a few weeks. Defendant then resumed hanging around the boys and buying them alcohol.

While hanging out with Defendant, the boys would skateboard and play basketball; Defendant never participated in those activities but would simply watch the boys. Although when in public Defendant would babble and effect a “nervous twitch,” when it was only Defendant and the four boys, Defendant “wasn't slow[,]” and acted “highly intelligent.”

At some point that summer, B.B. was alone with Defendant, who had offered to drive B.B. to Galena, Missouri, to visit a friend. On the way there, Defendant pulled over at a construction site and offered B.B. “a quantity of money,” somewhere between $150.00 and $200.00, to give B.B. oral sex. B.B. responded that he wanted to leave and that he was “just really scared.” After sitting at the site for ten minutes or so and asking at least once more that he be allowed to give B.B. oral sex, Defendant drove the two of them away from the construction site. The trip then continued as planned.

Also that summer, Defendant asked B.B. and J.M. to take a picture of them with their shirts off, in exchange for a carton of cigarettes. The boys refused to cooperate.

On four or five occasions that summer, Defendant let the boys drive a car. While one of the boys drove, Defendant sat in the front passenger seat of the vehicle, and would “try to grab [the driver's] legs” and “lean over and try to kiss [the driver.]” The boys would always push Defendant away. When one of the boys was driving, the other boys would sit on the window sills of the car, with their upper bodies outside of the vehicle. Occasionally, other individuals would be hanging around with Defendant, too, but usually it was just Defendant and the four boys. Sometimes, while a boy was driving the vehicle, Defendant would, without explanation or apparent reason, jerk the steering wheel, causing the car to go sideways.

On August 11, 2003, B.B., J.M., and J.S. were hanging out at J.S.'s house in Rockaway Beach. D.R. had just come to visit when Defendant pulled up in his fiancée's car and asked the boys to come help him deliver some boxes. Once the boxes had been delivered, Defendant drove the group to Blansit Road, a one-lane, winding dirt road in Taney County. Once at Blansit Road, Defendant pulled off to the side near a bridge and asked the boys if they wanted to drive. At some point that day, all four boys drove the vehicle. During each boy's turn, he would drive the car straight down Blansit Road and turn around. They never encountered any other cars that day.

While each boy drove, the remaining boys rode either on the hood of the car or on the passenger-side windowsill, with two boys riding on the same windowsill. Defendant never told the boys such activity was dangerous or that they should get down from either location.

When B.B. got behind the wheel for a second time, J.M. was riding on the hood of the car, while J.S. and D.R. were sitting on the passenger windowsill. B.B. drove from the bridge to the end of the road, turned the car around, and began heading back toward the bridge. Defendant told B.B. to “quit driving like a granny.” The car was traveling around thirty miles per hour. Defendant reached over and grabbed the steering wheel, jerking it to the side. J.M. slid across the hood and fell off the car, landing in the road. The car ran off the road, and the passenger side of the vehicle hit a tree.

B.B. blacked out on impact. When he came to, he was disoriented. He got out of the car and saw J.M. walking down the road, covered in blood. The two boys walked to a nearby creek to wash J.M.'s wounds. At that point, Defendant got out of the car, grabbed something from the trunk, and told B.B. and J.M. that “he wasn't taking the heat for it.” When B.B. asked Defendant if everyone was alright, Defendant replied that “they were dead.” Defendant then left the scene, heading away from the highway. B.B. finished splashing water on J.M.'s wounds and then ran toward the highway to a nearby construction site for help. From there, B.B. was taken to a store where he called the police. J.M. walked to a nearby swimming hole, and people who were swimming there gave him a ride back to the crash site.

At some point after the crash, but before help arrived on the accident scene, the car caught fire.

Corporal Mark Green of the Missouri State Highway Patrol was the lead investigator for the accident. He arrived on the accident scene just after 3:00 p.m. and saw the car “fully engulfed in flames.” He waited until the fire department extinguished the flames and then approached the vehicle. Once up close, he realized that the bodies of two teenagers were inside. At that point, there were no witnesses or bystanders at the site, so Corporal Green began to piece together what had happened from the accident scene itself. From tire marks, he was able to tell that the car had initially swerved to the right, then to the left, where it partially left the road, and then swerved back to the right, where it left the road completely and hit the tree. From there, the car rotated around and ended up near the creek that bordered Blansit Road. Corporal Green also determined that the car had to be traveling relatively fast, both because of the marks left by the vehicle and because the car had ricocheted off of the tree and across to the creek on the other side of the road.

While Corporal Green was investigating the scene, J.M. returned to the site of the crash. J.M. told Corporal Green what had happened and was taken by ambulance to the hospital. Shortly thereafter, B.B. returned to the scene with his mother and also related to Corporal Green the events leading up to the accident.

It was later determined that, after leaving the scene of the accident, Defendant eventually went to a nearby residence, arriving there some two hours after the crash. The homeowner transported Defendant to Skaggs Hospital. Following his investigation at the accident scene, Corporal Green went to Skaggs to see Defendant.

At that point, when asked what had happened, Defendant stated that all he remembered was “waking up in the woods.”

The following day, Corporal Green arrested Defendant at his fiancée's house. Corporal Green read Defendant his Miranda⁴ rights and again asked Defendant what had happened. Defendant again stated that the only thing he remembered was waking up in the woods.

Right after Defendant was released from the hospital, however, Defendant told his fiancée that he and the boys were at a park picking up trash when two of the boys got out of the car, “cold-cocked [Defendant] over the head and [threw him] in the passenger seat of the car[.]” One boy then took the wheel while the other one jumped on the hood of the car and then they crashed.

Following autopsies and examination by a forensic pathologist, the coroner determined that D.R. and J.S.-the two boys who were seated on the passenger windowsill at the time of the crash-both died as a result of blunt trauma injuries to the chest, neck, and head. Although the boys' bodies sustained serious burns as a result of the car catching fire...