State v. Bouser

• Decision Date: 14 December 1999
• Citation: 17 S.W.3d 130
• Parties: (Mo.App. W.D. 1999) . State of Missouri, Respondent, v. Robert A. Bouser, Appellant. WD55745 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

17 S.W.3d 130 (Mo.App. W.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Robert A. Bouser, Appellant.

WD55745

Missouri Court of Appeals Western District

Handdown Date: 12/14/99

Appeal From: Circuit Court of Jackson County, Hon. C. William Kramer

Counsel for Appellant: Andrew Schroeder

Counsel for Respondent: Philip M. Koppe

Opinion Summary:

Robert A. Bouser appeals from the trial court's judgment following his conviction by a jury of second degree felony murder, section 565.021.1(2) RSMo 1994, based on the underlying felony of abuse of a child.

Division Three holds: Felony abuse of a child did not "merge" into the resultant homicide of the child victim. Thus, the trial court properly instructed the jury on second degree felony murder pursuant to section 565.021.1(2) RSMo 1994, using child abuse as the underlying felony. The legislature clearly did not intend for there to be any merger as evidenced by its use of the phrase "any felony" in defining second degree felony murder. Any change in position must come from the Legislature and not from this court.

Evidence regarding someone else having the opportunity to commit the crime was properly excluded by the trial court as irrelevant. The evidence did not sufficiently or directly connect some person other than Mr. Bouser with the crime.

Opinion Author: Victor C. Howard, Judge

Opinion Vote: AFFIRMED. Smith, P.J., and Turnage, Sr.J., concur.

Opinion:

Per Curiam Order and Memorandum modified by Court's own motion on March 28, 2000.

Robert A. Bouser (Mr. Bouser) was jury-tried and convicted as a persistent offender of second degree murder pursuant to section 565.021.1(2),¹ for which he was sentenced to eighteen years in prison.

Mr. Bouser asserts that the trial court erred: (1) in instructing the jury as to second degree felony murder based on the underlying felony of abuse of a child because that felony "merged" into the resultant homicide, and (2) in refusing to admit evidence that someone else had the opportunity to cause the injuries to the victim on the grounds the evidence was "irrelevant and immaterial."

The judgment is affirmed.

Facts

Appellant does not question the sufficiency of evidence to sustain his conviction, and a reasonable jury could find:

In February of 1997, J.M.P., a 15-month-old boy, lived in a small, two-bedroom duplex in Grandview, Missouri, with his mother, Krystal Judkins, his grandmother, Sherry McMannama, and his brother and sister, C.J. and S.P. His mother's boyfriend, appellant Robert Bouser, had also been living at the duplex with his family since November of 1996.

J.M.P. was just beginning to walk. On February 5, 1997, he fell and hit his head on the cement floor of a laundromat. Although a "knot" formed on the right side of his forehead and he cried for about ten minutes, J.M.P. quickly resumed playing and was "fine." That same evening, showing no apparent signs of injury, J.M.P. actively played with his brother and sister.

Due to recent surgery on the harelip and cleft palate J.M.P. was born with, it was necessary that he be given sponge baths. While bathing her son that night, Ms. Judkins did not notice scrapes or cuts anywhere on J.M.P.'s head or anywhere else on his body. Later J.M.P. fell asleep 20 minutes after his grandma gave him his bedtime bottle and put him to bed. He awoke once in the night because he was "cutting some teeth." His grandma fed him another bottle, gave him Tylenol and rubbed teething lotion on his gums. J.M.P. then fell back to sleep.

The next morning, February 6, 1997, both Ms. McMannama and Ms. Judkins awoke for work. After C.J. left for school on the bus, Ms. Judkins looked in on J.M.P. and S.P. Both were sleeping as usual, as was Mr. Bouser who had agreed to watch the children that day. Ms. Judkins and Ms. McMannama left around 9:00 a.m. for work. Only Mr. Bouser, S.P., and J.M.P. remained at the duplex.

That afternoon, Ms. McMannama returned to the duplex around 4:00 p.m. Mr. Bouser informed her he believed J.M.P. had fallen on some toys on the floor of his room, and he thought the boy was "breathing funny." When she checked on J.M.P., she observed that one of his teeth appeared loose, and he had a small cut on his mouth. She left to pick up Ms. Judkins at work. They returned home about thirty minutes later, and J.M.P. lay motionless on the living room couch. Mr. Bouser told them, "[J.M.P.] just fell over and collapsed." Ms. McMannama then called 911 using the neighbor's phone.

Considered a "critical pediatrics" case, J.M.P. was taken by the ambulance to Children's Mercy Hospital with Ms. Judkins riding along. The paramedic's initial diagnosis indicated that the boy was in shock, and his "brain was having some type of significant trouble." J.M.P. exhibited significant breathing and circulation problems. Upon removal of J.M.P.'s clothing, the paramedic observed "several bruises to the face, to the neck area, and to the chest and abdomen." Ms. Judkins was upset and would not answer the paramedic's questions as to the origin of her son's bruises.

He arrived at Children's Mercy at 5:20 p.m., February 6, 1997, and was treated by an emergency trauma team. Due to the severity of his injuries, he died the following day.

On February 10, 1997, Detectives VanWinkle and McKinstry arrested Mr. Bouser "for investigation of killing J.M.P." and transported him to the Grandview police station. Mr. Bouser waived his Miranda rights and gave a statement as to what occurred on the day of February 6, 1997, when he was the only adult with S.P. and J.M.P. A synopsis of Detective VanWinkle's testimony, (verbatim where indicated by quotes) follows:

Mr. Bouser recounted that he agreed to watch the kids that day. After they woke up and he fixed breakfast, S.P. had scattered her toys everywhere in the children's bedroom, and J.M.P. had "shit all over himself." He had to bathe him and clean up the mess. In describing both incidents to the detective, Mr. Bouser "became agitated" and "shifted around" in his seat. Mr. Bouser explained that later, while he was in the living room and the children were in their bedroom, he heard J.M.P. cry. He went in to check on him again. He discovered the boy had a loose tooth and small amount of blood on his mouth. From this, he speculated that perhaps the boy had fallen on some of the toys on the floor or on the bedroom table. He told the detective that "except for a little cold . . . [J.M.P.] had acted fine all week . . . . He might have had a little bit of a breathing problem but it was not anything serious. It was just something that kids get." After Ms. McMannama arrived home and then went to call and pick up her daughter, Mr. Bouser described to the officer that he had set J.M.P. on the couch next to him, and, "next thing he knew, J.M.P. rolled over backwards and kind of went limp . . . . He said he picked him up by the arms and shook him . . . trying to get him to respond, and . . . he didn't respond." When accused of the "murder" of J.M.P., Detective VanWinkle observed Mr. Bouser's "low voice" denial, but it was not "much of a strong denial."

At trial, doctors from the trauma team and the medical examiner who performed his autopsy testified for the State. Injuries to J.M.P.'s brain included: a small "acute, severe" subdural hematoma (blood in the space around the brain), a "cerebral edema" ("diffused swelling" of the brain causing an interruption in the blood supply to the brain), and a "subarachnoid hemorrhage" (blood in the space on top of the brain). The doctors also found extensive bruising on J.M.P.'s body, numerous retinal hemorrhages, abdominal injuries including a large laceration or cut through his liver, damage to the right adrenal gland, a large amount of blood within the abdominal cavity, and signs that J.M.P. was "in shock" (his blood was not properly circulating through his vital organs).

The doctors all testified that J.M.P.'s injuries could not have resulted from falling onto a pile of toys, bumping his head on a table or falling on the cement while trying to walk. The head and abdominal injuries resulted from direct, intentional "blunt traumas" of significant force to the baby's head and to his abdomen. The medical experts were unable to pinpoint exactly when the injuries were sustained or which life-threatening injury ultimately caused his death. However, their testimony showed that if J.M.P.'s severe injuries occurred prior to February 6, 1997, he could not have awoken on February 6th, could not have played or eaten in any normal fashion, and overall "he would have been significantly abnormal." Each medical witness also testified that J.M.P., with these significant injuries, could not have been sitting normal in an adult's lap and then have suddenly collapsed as Mr. Bouser contended.

Mr. Bouser was subsequently convicted of second degree murder pursuant to section 565.021.1(2). After finding him to be a "persistent offender" under section 558.016.3, the trial judge sentenced Mr. Bouser to eighteen years. Mr. Bouser filed a motion for a new trial raising the same issues set forth in this appeal. The trial court denied Mr. Bouser's motion, and this appeal followed.

Point I

Mr. Bouser contends the court erred in instructing the jury as to second degree felony murder based on the underlying felony of abuse of a child. He argues felony abuse of a child, analogous to assault, "merged" into the homicide offense. This is because that felony "is not a separate and independent offense of homicide, but actually result[ed] in the victim's death" thereby precluding its use as a predicate felony for a conviction of second degree felony murder. Mr. Bouser requests that his conviction and sentence for felony murder in the second degree be reversed, and therefore requests that the case be remanded either for a new trial or for re-sentencing for the offense of...