State v. Abney

• Docket Number: SD37812
• Decision Date: 17 January 2024
• Parties: STATE OF MISSOURI, Respondent, v. RANDALL LEE ABNEY, Appellant.
• Court: Missouri Court of Appeals

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STATE OF MISSOURI, Respondent,
v.
RANDALL LEE ABNEY, Appellant.

No. SD37812

Court of Appeals of Missouri, Southern District, In Division

January 17, 2024

APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY HONORABLE MICHAEL J. RANDAZZO, JUDGE

BECKY J.W. BORTHWICK, J. AUTHOR

AFFIRMED.

Following a jury trial, Randall Abney ("Defendant") was convicted of neglect of a child and murder in the second degree, see §§ 568.060 and 565.021,^[1] for failing to provide his ten-year-old daughter ("Child") with adequate nutrition which ultimately led to her death. In four points, Defendant argues that the trial court erred in admitting hearsay and evidence of other bad acts. Because Defendant's claims are without merit we affirm.

Factual and Procedural Background

This Court is required to view the evidence in the light most favorable to the jury's verdicts. State v. Vandergrift, 669 S.W.3d 282, 291 (Mo. banc 2023).

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In October 2020, police responded to a call requesting service for an unresponsive female at Defendant's home. When police arrived, they saw Child lying on the floor with Defendant kneeling down next to her. Police initially thought Child had a terminal illness due to how thin she appeared. Child was transferred to the hospital and later pronounced deceased. The responding officer had the house secured because his observations led him to believe Child's condition indicated abuse or neglect.

Detective Matt Atkinson ("Detective") was the primary investigator. Detective testified Defendant indicated during his interview that it was Child's choice not to eat. Detective testified that his investigation revealed no evidence that Child suffered from an eating disorder.

Savannah Pogue was the circuit manager for the Division of Children's Services ("Circuit Manager"). Circuit Manager testified she supervised "the licensing unit for the entire circuit" and was responsible for the oversight of foster parents in the district. Circuit Manager supervised the unit that issued Defendant's foster care license and also supervised him in that capacity. Circuit Manager testified that Child was first fostered by Defendant in 2012 and was later adopted. When Child was adopted by Defendant, Children's Division's supervision of the child stopped. After Child's adoption, Defendant continued to foster numerous other children until his license was surrendered in 2017. Circuit Manager testified that the foster care license of Defendant was surrendered in connection with Defendant's administration of food deprivation punishments. Defendant objected to this testimony on the basis that it was impermissible hearsay, evidence of prior bad acts, and was testimonial hearsay in violation of the confrontation clause. The trial court found that the testimony was not hearsay and allowed it to be entered to show lack of mistake, motive, and pattern of conduct.

The State presented multiple witnesses to establish Child's cause of death. The coroner

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testified that Child had wasting syndrome, which was commonly only seen in hospice patients. The coroner also testified that it would take months of inadequate nutrition for a child to experience such a condition. The doctor who pronounced Child deceased at the hospital also testified that it would take a long time for someone to deteriorate to Child's condition at the time of her death. Another expert witness testified that the autopsy supported the findings of dehydration and malnourishment, leading him to believe she was not receiving adequate nutrition to survive.

The State also presented evidence from Defendant's wife which showed Defendant regularly used food deprivation to punish Child. Defendant's wife testified to the validity of numerous conversations via Facebook and text messages (collectively referred herein to as "messages") between her and Defendant detailing how extreme the food deprivation punishments were in the months leading up to Child's death.

Neither the State nor the Defense referenced the testimony which provides the basis for Defendant's claims of error in their closing argument. The jury found Defendant guilty, and the trial court sentenced him to two life sentences.

Discussion Points I and II

Since both the first and second points on appeal address the rule against hearsay statements, we will address them together. Defendant contends that the trial court abused its discretion by admitting inadmissible hearsay from Detective and Circuit Manager.

A trial court has broad discretion to admit or exclude evidence at trial. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). Reversal of a trial court's ruling on the admission of evidence is only compelled if the court has clearly abused its discretion. Id. Discretion is

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abused when a ruling is clearly against the logic of the circumstance and is so unreasonable as to indicate a lack of careful consideration. Id. This Court reviews the trial court for prejudice on direct appeal and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Id. "Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id.

"A hearsay statement is any out-of-court statement offered to prove the truth of the matter asserted, and is generally not admissible." State v. Graham, 529 S.W.3d 363, 367 (Mo. App. 2017). "The essential principle of the hearsay rule is to secure trustworthiness of testimonial assertions by affording the opportunity to test the credit of the witness, and it is for this reason that such assertions are to be made in court subject to cross-examination." State v. Kirkland, 471 S.W.2d 191, 193 (Mo. 1971).

Defendant claims in his first point that Detective's testimony included inadmissible hearsay statements. The following was allowed into evidence over defense counsel's objection:

Q: Did you investigate whether [Child] had any prior eating

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