State v. Brown

Decision Date23 September 1997
Docket NumberNo. WD,WD
CourtMissouri Court of Appeals
PartiesSTATE of Missouri, Respondent, v. Bill BROWN, Appellant. 53178.

Gary E. Brotherton, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for Respondent.

HANNA, Judge.

This is an appeal by the defendant from his convictions for physically and sexually abusing two of his children, B.J. and L.M. The convictions were for two counts of abuse of a child § 568.060, RSMo 1994, one count of rape of a child less than 14 years of age, § 566.030, RSMo Supp.1993, and one count of sodomy of a child less than 14 years of age, § 566.060, RSMo Supp.1993, rendered in the Circuit Court of Boone County, Missouri. The defendant was sentenced as a prior offender, § 558.016, RSMo Cum.Supp.1993, to a total of life plus 14 years in the department of corrections.

During 1992 and 1993, L.M. was seen by Dr. Debra Howenstine, a doctor at the health department, on at least seven occasions. She testified that L.M. (whose date of birth is April 12, 1987) exhibited medical symptoms of sexual and physical abuse. She also examined B.J. (whose date of birth is March 16, 1990). Dr. Howenstine reported her concerns to the police. In response to these reports, Officer Susan Wooderson-Stanley interviewed L.M. several times. In March of 1993, the children were taken into custody by the Division of Family Services. L.M. was placed in foster care with the Ketter family and B.J. was placed with the D'Agostino family. In December of 1993, L.M. was referred to Lynne Dresner for counseling.

At trial, L.M. (who was then nine years old) testified and was subject to cross-examination. B.J. (who was then six years old) was called and asked only to state his age. The defendant did not cross-examine B.J. Additionally, pursuant to the trial court's ruling on admissibility of out-of-court statements under § 491.075, RSMo 1994, Dr. Howenstine, Officer Stanley-Wooderson, Ms. Dresner, Ms. D'Agostino and Ms. Ketter testified as to their own observations as well as the out-of-court statements made to them by the children.

The defendant raises five points on appeal. The first point challenges the sufficiency of the evidence to sustain the convictions in Counts I and II for child abuse. The relevant facts are set forth in more detail below.

The defendant claims that the trial court erred in overruling his motions for acquittal on Counts I and II because there was insufficient evidence to convict beyond a reasonable doubt. Count I charged the defendant with abuse of B.J. in violation of § 568.060 for the act of inflicting "traumatic suffocation". 1 Count II charged the defendant with abuse of a child for the act of striking L.M. with his fist, which resulted in her tooth being broken off at the gum line.

Appellate courts look only to whether there is sufficient evidence from which reasonable persons could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); State v. Grim, 854 S.W.2d 403, cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993); State v. Nelson, 818 S.W.2d 285 (Mo.App.1991). In assessing a challenge to the sufficiency of the evidence, the evidence, together with all reasonable inferences to be drawn therefrom, is viewed in the light most favorable to the verdict. State v. Grim, 854 S.W.2d at 405. The credibility of witnesses and conflicts in testimony are questions for the jury. State v. Nelson, 818 S.W.2d at 288.

With respect to Count I, attempting to suffocate B.J., Dr. Howenstine testified that she examined B.J. when he was not quite three years old. At that examination, she found subconjunctival hemorrhage (submembrane bleeding) in the white parts of his eyes, and pinpoint hemorrhages (petechiae) on his face, ears, behind the ear, scalp and on his eardrums. She also found bruises on his back, but no broken ribs, and internal bleeding or bruises on his neck. Subconjunctival hemorrhages and petechiae are caused by a rapid increase in pressure in the blood vessels, particularly to the blood vessels of the chest cavity. A rapid increase in pressure to these blood vessels increases the pressure in the blood vessels that distribute blood to the head. This increase in pressure in a normally healthy person may be caused by strangling. When a person is strangled or choked, their struggle to breathe causes an increase in the pressure to the chest cavity resulting in petechiae and subconjunctival hemorrhages. Dr. Howenstine testified that her medical examination, and her questions to the defendant and mother, ruled out other underlying medical causes for these symptoms. She concluded that B.J.'s injuries resulted from traumatic suffocation, which either occurred by a rapid violent compression of the chest, or a choking around the neck. Dr. Howenstine reported her concerns to the police, who came to the office and photographed B.J.'s injuries.

In addition to the testimony of Dr. Howenstine, Ms. D'Agostino, B.J.'s foster mother, testified that B.J., in the summer of 1993, had repeated nightmares on a very regular basis. Ms. D'Agostino would find B.J. huddled in the corner of the bed, very distraught and panicked. When she tried to calm him down, B.J. would state: "Daddy Bill choked me. Daddy Bill choked me." On only one occasion had B.J. said that the defendant had hit him in the eye. Ms. D'Agostino also testified that when B.J. made these statements, he seemed to be quite aware of where and who he was. Corroborating these statements were statements made by L.M. L.M.'s counselor, Ms. Dresner, testified that L.M articulated her single most pronounced fear was that she would be choked to death. She repeatedly indicated that the defendant choked her and that he had also choked B.J. and her other brother. Officer Wooderson-Stanley also testified that L.M. stated that the defendant had choked her and had held her head under water and that she had also seen him choke her brothers.

The defendant argues that the state's evidence merely casts suspicion on him, and that it does not rise to the standard of proof beyond a reasonable doubt. The medical evidence and the statements made by L.M. that she had witnessed the defendant choking B.J. pursuant to § 491.075, RSMo--corroborated by two separate witnesses--constitute sufficient evidence from which reasonable persons could have found the defendant guilty beyond a reasonable doubt. See e.g., State v. Grim, 854 S.W.2d at 411.

The evidence presented with regard to the charge of the defendant hitting L.M. in the mouth with his fist (Count II) came from Dr. Howenstine and Ms. Dresner. Dr. Howenstine testified that she observed L.M. on February 8, 1993, in her waiting room and that L.M.'s teeth appeared to be healthy and intact on that date. Approximately one month later, while examining L.M., she noticed that L.M.'s tooth was completely broken off at the gum line. Further examination revealed an abrasion on the gum above the tooth and a swollen and tender lip. Because L.M. was uncomfortable answering questions regarding how the injury had occurred, Dr. Howenstine did not press the issue. Several months later, during another examination, Dr. Howenstine testified that L.M. was still not ready to talk about how her tooth was broken. A month later, Dr. Howenstine again asked L.M. if she felt like talking about her broken tooth, and L.M. responded by telling her that "My daddy hit me and it came off." She demonstrated this by making her hand into a fist, and striking at her own face. Additionally, Ms. Dresner, L.M.'s counselor, testified that L.M. told her on several occasions that the defendant had hit her and one time stated that he had "punched" her in the mouth.

At trial, during cross-examination, L.M. testified that she remembered having the tooth knocked out, but that she did not know how it happened. She further testified that she didn't think that the defendant ever hit her in the face with his fist, and responded "yes" when asked "If you ever told anybody [that] he did, that would be a lie?". Upon re-direct, L.M. testified that she could not remember how her tooth was broken.

The defendant characterizes L.M.'s testimony as an unequivocal recantation of the allegation that he hit her, therefore, "[t]he jury ... should not have been merely free to decide which time [L.M.] was telling the truth, without the benefit of corroborating evidence." State v. Pierce, 906 S.W.2d 729, 735 (Mo.App.1995). Furthermore, he criticizes Dr. Howenstine's credentials to assess L.M.'s dental condition and claims the doctor's interview techniques maneuvered L.M. into false accusations. The state responds that L.M. simply could not remember what had happened when she was six years old, three years before the trial, and that Dr. Howenstine never pressed her for information and L.M.'s responses were spontaneous and reliable.

The result is that the defendant maintains that because L.M. had claimed he hit her on the face, and then recanted, the only reliable evidence as to whether he had hit L.M. in the face comes from Dr. Howenstine's hearsay testimony. Citing State v. Pierce, he claims his conviction under Count II should be reversed. Id. at 735.

Pierce involved a conviction that was reversed because it was based solely on a teenage victim's prior inconsistent, uncorroborated statement which she rescinded numerous times. The prior statement was not supported by any corroborating evidence. The Pierce court ruled that a conviction cannot be supported where the prior inconsistent statement, which is not corroborated, is the prosecution's sole evidence. Id. at 735.

In the matter before us, there is medical evidence that while in the defendant's custody, within a month of observing that the tooth was intact, the child's tooth was broken off at the...

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