State v. Applegate, 12590

• Decision Date: 28 March 1984
• Docket Number: No. 12590,12590
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lex Ray APPLEGATE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 624

668 S.W.2d 624

STATE of Missouri, Plaintiff-Respondent, v. Lex Ray APPLEGATE, Defendant-Appellant.

No. 12590.

Missouri Court of Appeals,

Southern District,

Division Two.

March 28, 1984.

George M. Johnson, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Jay A. Daugherty, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

By two-count information, defendant Lex Ray Applegate was charged with second-degree murder, as defined and denounced by § 565.004, RSMo 1978, ¹ and with sodomy, as defined and denounced by § 566.060. The victim was one Donald Eugene Medley, a male child about 2 1/2 years of age. At the defendant's request and with the trial court's consent, trial was had to the court without the aid of a jury. The court found the defendant guilty of second-degree murder as charged in Count II of the information and assessed his punishment at imprisonment for a term of 99 years; the court further found defendant guilty of sodomy as charged in Count II of the information and assessed his punishment for the commission of that crime at imprisonment for 10 years. It was ordered that the sentences run consecutively. The defendant has appealed.

Three assignments of error have been briefed and submitted in this court. Two of these arguments have to do with the admission of evidence; the third and most important has to do with the sufficiency of the evidence to support the judgments of conviction.

As the defendant reminds us, the State's case upon each count is wholly and entirely circumstantial. Nevertheless, all evidence upon the whole record tending to support the guilty verdicts must be taken as true, contrary evidence must be disregarded and every reasonable inference tending to support the verdicts must be indulged. State v. Lee, 556 S.W.2d 25, 32 (Mo.banc 1977); State v. Cobb, 444 S.W.2d 408, 412 (Mo.banc 1969); State v. Morris, 564 S.W.2d 303, 304 (Mo.App.1978).

On February 13, 1981, the defendant and his wife, Debra Sue, lived in an apartment on the near west side of Springfield. Before Debra Sue married the defendant, she had become the mother of three illegitimate sons, Randy, Donald and Shawn. The two younger sons, Donald and Shawn, lived with the defendant and his wife. Donald, the victim of the crimes charged, was born June 27, 1978; he was therefore not quite 3 years old when he died. Shawn, the victim's younger brother, was not quite two years of age. At the time in question, Debra Sue was employed; the defendant was not. The defendant therefore stayed at home and looked after the children while Debra Sue worked.

On February 13, Debra awoke about 6 a.m. She dressed and made a pot of coffee. While Debra was in the kitchen, Donald woke up and came in the kitchen. He was fully clothed, having slept in his clothing. Debra held the child for some time; she noticed a bruise on the right side of Donald's face and another on "his stomach," but it is inferable from Debra's testimony that Donald was sleepy but normal when she left for work at 7:15 a.m. The defendant and the younger child were still asleep; Donald was left on a couch.

About 1:45 p.m. an ambulance was dispatched to the defendant's apartment. Ambulance attendants found Donald lying on the floor in a "living room-family room." The child was fully dressed; the attendants found no pulse and the child was not breathing. The attendants nevertheless attempted cardiopulmonary resuscitation and transported the victim to the emergency room of a large general hospital in north Springfield.

At the hospital, heroic efforts were made to revive the child, but it soon became obvious that these efforts were nonproductive, and the child was pronounced dead at 2:33 p.m.

I

(Sufficiency of proof of homicide)

(a)

The sufficiency of the evidence to support the conviction of second-degree murder in this case is best analyzed by resort to the corpus delicti of the crime. This is true because, as was the case in State v. Morris, 564 S.W.2d 303, the defendant's sufficiency point is not specifically directed to a failure of proof of one or more of the basic elements of second-degree murder. ² Rather, as drawn, the defendant's contention is that the evidence "... did not meet the standard of being inconsistent with defendant's innocence to the exclusion of every reasonable hypothesis of his innocence because while the State's evidence ... did show that [the] victim died from blows to the abdomen consistent with being struck by a fist or foot, the evidence ... did not show that the death was inconsistent with a fall down a flight of stairs combined with landing on or striking a concrete block as testified to by [the] defendant."

Though it has been variantly stated, the corpus delicti in a homicide case consists of two elements: (1) the death of a human being, and (2) the criminal agency of another. The elements of the corpus delicti cannot be said to be established until it has been proved that the death was not self-inflicted, nor due to natural causes or accident. The State must further prove, as an additional element, a criminal act of the defendant (his agency) as a cause of the victim's death. State v. Meidle, 202 S.W.2d 79, 81 (Mo.1947); State v. Joy, 315 Mo. 7, 19-22, 285 S.W. 489, 494-496 (concurring opinion) (1926); State v. Crabtree, 170 Mo. 642, 650, 71 S.W. 127, 129 (1902). Nevertheless, all the elements of a homicide case may be proved circumstantially. State v. Ross, 371 S.W.2d 224, 225 (Mo.1963); State v. Morris, 564 S.W.2d at 309. Further, the evidence which tends to prove the second element of the corpus delicti may also be relevant upon and tend to prove the defendant's criminal agency. Meidle, 202 S.W.2d at 81; Joy, 315 Mo. at 21, 285 S.W. at 489. We would not be misunderstood; defendant's argument is presented in terms of "causation," but as noted in Morris, 564 S.W.2d at 309, n. 6, the determination of "agency" involves much the same inquiry as the determination of "causation." As we shall see, the necessary element is often called "cause and effect" in child-abuse murders.

(b)

Upon trial and in this court, the defendant maintained that the victim died as a result of a fall down a flight of stairs. The defendant and his wife lived in a walk-up flat; we do not know precisely whether the building was a two, three or four-story building, but State's exhibits 3, 4, 5 and 6 show that as one leaves the apartment, he must turn left and descend a flight of stairs to leave the building. Exhibit 5 shows a concrete block at the foot of the stairs. At the foot of the stairs on a landing, there is an 8-inch concrete block. The block was used as a doorstop.

Officer Dennis, a witness for the State, testified that the photographs of the stairway were taken February 13, 1981. At that time he observed that the stairs were wooden stairs; the stairway was composed of 18 risers and 17 treads; the entire stairway was carpeted; there were walls on both sides of the stairway, and on the west (right side as one descends) there was a handrail about 30 inches high. Later, this officer verified his measurements and took others. The stairway, from top to bottom, measured 16 feet 2 inches; the width of the landing from the bottom of the stairs to the wall opposite, was 5 feet.

In State's exhibit 5, the concrete block is shown as being positioned very near the wall opposite the bottom of the stairs. Debra Sue testified the block was in the position shown on Exhibit 5 when she left for work on Friday, February 13, 1981. She stated: "It [the concrete block] was just like this. I can remember." The witness elaborated; she had seen the block "laid down on its side before, but it was always in the same spot."

Contending that the victim's injuries and death were caused by a fall, the defendant maintained the block was not over and against the wall as shown by Exhibit 5 when the child fell, but instead "was settin' out from the wall a ways." Defendant maintained that after Debra Sue left for work, he started to take the victim and his younger brother outside. He was carrying the younger boy; the victim started down the stairs and fell. Because Exhibit 43 is not before us, we cannot accurately determine where the child started falling, but defendant testified he "seen him bounce once" and further testified the victim "fell over head first and went down like on his stomach." It is not clear from the defendant's testimony whether the child struck the concrete block as he was falling or whether the concrete block fell on the child, but in any event, the relevance of the testimony we have just recited in laborious detail becomes apparent: Whether or not the child tumbled part way down a flight of carpeted stairs, a rational trier of fact could have found, without the aid of expert testimony, that the child did not strike the concrete block.

Turning abruptly to the State's evidence, the victim was seen and clinically examined by two physicians, Dr. Bennoch and Dr. Ludwig. These physicians specialized in emergency medicine. Dr. Bennoch had an internship and a residency in pediatrics. It was obvious to him that the child had been dead for some time. Having determined that fact, Dr. Bennoch observed that the child had a very distended abdomen, so he and the other physician did a peritoneal tap, which involves inserting a large catheter into the abdomen just below the umbilicus. When the catheter was inserted, a forceful spray of blood was ejected from the victim's abdomen. This indicated there had been severe damage to one of the organs in the abdomen.

This physician also found numerous bruises of varying duration over the body of the victim. Most of the bruises looked relatively fresh, but some were "at least a day or two older." Based on his observation, this witness determined that the injuries sustained by the victim were such as would have been produced by a blow from a fist or foot. ³ Dr. Bennoch was further of the...