State v. Closterman, No. WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBERREY
Citation687 S.W.2d 613
PartiesSTATE of Missouri, Respondent, v. Danny CLOSTERMAN, Appellant. 34870.
Docket NumberNo. WD
Decision Date13 February 1985

Page 613

687 S.W.2d 613
STATE of Missouri, Respondent,
v.
Danny CLOSTERMAN, Appellant.
No. WD 34870.
Missouri Court of Appeals,
Western District.
Feb. 13, 1985.
Motion for Rehearing and/or Transfer to
Supreme Court Overruled and Denied
April 2, 1985.
Application to Transfer Denied
April 30, 1985.

Page 615

Fred Duchardt, Public Defender, Peter M. Schloss, Asst. Public Defender, Liberty, for appellant.

John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and NUGENT and BERREY, JJ.

BERREY, Judge.

The defendant, Danny Gene Closterman, was convicted of manslaughter in the death of his three and one-half year old step-daughter, Colleen. The jury imposed a sentence of ten (10) years in the Missouri Department of Corrections. From this sentence defendant appeals and raises three points of trial court error: (I) insufficient evidence existed to support a guilty verdict, (a) because evidence established a number of possible causes of death, (b) because no credible or substantial evidence that defendant committed any act upon decedent causing her death existed in that the State established date and time of death as 1:49 p.m. on July 19, 1982. The State acknowledged that the only evidence of criminal agency attributable to the appellant was that he struck blows upon the decedent in the late evening of July 19, 1982; (II) the trial court erred by not suppressing appellant's statements because they were not voluntary and there was no probable cause to arrest defendant in the first instance; (III) the Superior Court of Navajo County, Arizona, erred in refusing to issue a summons directing defendant's wife to attend and testify at trial in Missouri. The three page multi-faceted point is contrary to Rule 84.04. 1 It fails to state "briefly and concisely what actions or rulings of the court are sought to be reviewed." Nevertheless, an attempt is made herein to dispose of this point which pertains generally to out-of-state witnesses.

Initially the defendant errs in stating the time and date of the death of Colleen. The State's hypothetical to the pathologist accurately reflects the time and date of death as July 20, 1982 at 1:49 p.m., at least twelve hours after defendant stated he struck the child in her stomach with his fist. In addition, Officer Steve Duke, of the Kansas City, Missouri, Police Department, who responded to the emergency call, a defense witness, acknowledged the call and his response occurred on July 20, 1982.

Dr. Bonita Peterson, Jackson County Medical Examiner, stated unequivocally that the injury to the abdominal area was the cause of death. It should be pointed out that the decedent was three and one-half years of age and weighed approximately thirty pounds; that the defendant, her step-father, was a large man who weighed about two hundred twenty-five pounds and had large hands.

From a complete reading of the transcript there is no doubt that the little girl was terribly abused over a prolonged period of time. Defendant maintains that his wife, Colleen's mother, was the abuser. According to Joan Capps, defendant's sister, early in June, 1982, Colleen's arm had been burned from the shoulder to the elbow about halfway around, "It was pure red and no skin whatsoever." Mrs. Gail Thompson, a sister of defendant, had Colleen

Page 616

in her care the last week of June in 1982, and testified, "She was really quiet and her stomach was big and hard.... She drank an extra lot of water and didn't have a bowel movement while she was there, so I thought that was the reason that it [stomach] was hard." Thompson thought she was starving due to the bloated condition of the stomach and though she fed Colleen, Colleen could not keep the food down.

Craig Jones, a stranger to defendant, went to visit Mimi Wilson, a neighbor of the Closterman's when they lived in Phoenix, Arizona. While waiting at Mimi's door he heard a female child whine and an adult female tell her to "shut up" and then a couple of blows. It sounded like a whip and then smack to the skin and then a scream. This went on at least two minutes. The incident took place at the end of May or the first of June, 1982.

Mimi Wilson, testifying by deposition, acknowledged she was a neighbor of defendant and his wife and knew them for six months. They moved into an apartment across from her in January or February and left in June or July. Mimi stated she was aware of unusual activity in the defendant's apartment, "The abuse of Colleen." When they first started moving in Mimi observed Mrs. Closterman strike Colleen with her belt, heard Colleen crying, and Mrs. Closterman yelling and screaming. The episode lasted about ten minutes.

Grace Souder, next door neighbor of the Closterman's, in July, 1982, testified she observed Colleen at play and that despite the hot weather, Colleen did not have a lot of energy. She barely was able to walk. "And she was holding her stomach and she threw the little ball and she'd just barely pick it up. And finally she just sat down underneath the tree and held her stomach again."

On July 19, the defendant had been watching television with his wife Sherry. During the course of the evening he drank a couple of beers and several Jim Beam bourbons mixed with Pepsi. According to defendant, he had between three and six drinks. Sherry left to go for snacks. During her absence defendant went through Colleen's room to the bathroom and Colleen was awake. The following is excerpted from defendant's statement:

As I went in I saw her setting up in bed. She said, "Hi" to me, or something like that. I told her to lay down and go to sleep. Her bed was a mattress on the floor, and she should have already been asleep.... When I finished [in the bathroom] and came out, I asked Colleen why she didn't mind me, about laying down and going to sleep. She shrugged her shoulders and said she didn't know. I told her something like, for her to talk with me and to answer me. I asked her again, why she hadn't minded, and she said she didn't know, she just wanted to sit in bed. Then she was laying flat down on the mattress. I may have knelt over her, or beside her. I hit her with my fist several times, in the stomach. Then I found myself out in the hall, shaking and sweating. This has happened to me when I had hit her before....

The MAST Ambulance Company responded to the Closterman's home at 4151 North Hardesty to pick up a little girl named Colleen, "a non-breather." Attendant Klate picked up the child in the house and ran to the ambulance. The child was administered CPR and mouth to mouth resuscitation and taken to the emergency room at the North Kansas City Memorial Hospital, where further life saving techniques were employed, to no avail. The Clay County coroner was not available and the Jackson County Medical Examiner was contacted to perform the autopsy. The autopsy took place July 21, 1982.

Dr. Peterson stated she had:

Four diagnosis. The first one is the most important, blunt force abdominal injury, acute and chronic, with scarring and fat necrosis, especially in the region of the pancreas and root of mesentery; old blood in peritoneal cavity, apparently related to omental and mesenteric lacerations; recent hemorrhage along mesenteric

Page 617

border of small intestine and pericecal area, that's in (indicates) the region of the appendix. Both leafs of the diaphragm and focally in intercostal muscle. That's in the chest between the ribs.

The State then asked:

Q. Can you put that in lay language, doctor?

A. Okay, blunt force admoninal injury in the pit of the stomach causing the scarring and hemorrhage in various areas.

Dr. Peterson was asked if the injuries to the abdominal area caused the death, her plain answer was yes. She was asked:

Q. Do you have an opinion consistent with reasonable medical certainty of the cause of death?

A. Yes, it was my opinion that the child died as a result of blunt force injury to the abdomen.

Q. To the abdomen?

A. Yes.

The doctor testified that there was a causal connection between the blows to Colleen's stomach and her death. It would serve no purpose to detail the many other injuries that Colleen had had inflicted on her tiny body.

The trial court properly denied defendant's motion for acquittal because as alluded to there was ample evidence both direct and circumstantial viewed in light most favorable to the State to sustain the conviction. State v. Mayes, 654 S.W.2d 926, 928 (Mo.App.1983).

In each case we must review the evidence and determine whether the finding of guilt was supported by substantial evidence. The weight of the evidence is for the jury if the reviewing court can first find substantial evidence. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51 (1936); State v. Mayes, supra, at 928.

Dr. Peterson's medical opinion coupled with the corroboration evidence is sufficient to establish that defendant caused the death of Colleen. The evidence does not have to exclude other possibilities of the cause of death.

In appellate review of sufficiency of evidence, all evidence and inferences in the record tending to support the jury's finding the defendant guilty are accepted as true, and all contrary evidence and inferences are to be disregarded.

State v. Mondaine, 655 S.W.2d 540, 543 (Mo.App.1983).

The State is required to prove the cause of death beyond reasonable doubt and may do so by circumstantial evidence. Holtkamp v. State, 588 S.W.2d 183, 188 (Mo.App.1979).

In the instant case there is ample evidence to demonstrate the victim died from a blunt force blow to the abdomen.

The prosecutor asked Dr. Peterson:

Q. Did you, from the examination do you have an opinion consistent with reasonable medical certainty of the cause of death?

A. Yes, it was my opinion that the child died as a result of blunt force injury to the abdomen.

The appellant alleges the State failed to accurately prove the date and time of death. Yet, Dr....

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8 practice notes
  • State v. Bennett, SC 18862
    • United States
    • Supreme Court of Connecticut
    • March 14, 2017
    ...L.Ed.2d 768 (1969) ; Commonwealth v. Edgerly , 6 Mass.App.Ct. 241, 255 and n.6, 375 N.E.2d 1 (1978) ; 155 A.3d 198State v. Closterman , 687 S.W.2d 613, 620 (Mo. App. 1985) ; State v. Smith , 87 N.J.Super. 98, 102, 208 A.2d 171 (1965) ; People v. McCartney , 38 N.Y.2d 618, 621, 345 N.E.2d 32......
  • Lokk v. CMI, Inc., NO. 2013–CA–000661–MR
    • United States
    • Court of Appeals of Kentucky
    • February 27, 2015
    ...which the trial court found the witness to be material and/or a summary of the witness's anticipated testimony. See State v. Closterman, 687 S.W.2d 613, 621 (Mo.Ct.App.1985). If certified, the certification is forwarded to a court of record in which the witness is found. KRS 421.250(1).Id. ......
  • Lokk v. Cmi, Inc., NO. 2013-CA-000661-MR
    • United States
    • Court of Appeals of Kentucky
    • February 27, 2015
    ...which the trial court found the witness to be material and/or a summary of the witness's anticipated testimony. See State v. Closterman, 687 S.W.2d 613, 621 (Mo. Ct. App. 1985). If certified, the certification is forwarded to a court of record in which the witness is found. KRS 421.250(1). ......
  • State v. Wimbish, No. 22110-1-II.
    • United States
    • Court of Appeals of Washington
    • March 24, 2000
    ...of out-of-state witnesses.2 People v. Cavanaugh, 69 Cal.2d 262, 444 P.2d 110, 70 Cal.Rptr. 438, 440 (1968); State v. Closterman, 687 S.W.2d 613, 620 (Mo.Ct.App.1985); People v. McCartney, 38 N.Y.2d 618, 345 N.E.2d 326, 328, 381 N.Y.S.2d 855 (1976); State v. Blount, 200 Or. 35, 264 P.2d 419,......
  • Request a trial to view additional results
8 cases
  • State v. Bennett, SC 18862
    • United States
    • Supreme Court of Connecticut
    • March 14, 2017
    ...L.Ed.2d 768 (1969) ; Commonwealth v. Edgerly , 6 Mass.App.Ct. 241, 255 and n.6, 375 N.E.2d 1 (1978) ; 155 A.3d 198State v. Closterman , 687 S.W.2d 613, 620 (Mo. App. 1985) ; State v. Smith , 87 N.J.Super. 98, 102, 208 A.2d 171 (1965) ; People v. McCartney , 38 N.Y.2d 618, 621, 345 N.E.2d 32......
  • Lokk v. CMI, Inc., NO. 2013–CA–000661–MR
    • United States
    • Court of Appeals of Kentucky
    • February 27, 2015
    ...which the trial court found the witness to be material and/or a summary of the witness's anticipated testimony. See State v. Closterman, 687 S.W.2d 613, 621 (Mo.Ct.App.1985). If certified, the certification is forwarded to a court of record in which the witness is found. KRS 421.250(1).Id. ......
  • Lokk v. Cmi, Inc., NO. 2013-CA-000661-MR
    • United States
    • Court of Appeals of Kentucky
    • February 27, 2015
    ...which the trial court found the witness to be material and/or a summary of the witness's anticipated testimony. See State v. Closterman, 687 S.W.2d 613, 621 (Mo. Ct. App. 1985). If certified, the certification is forwarded to a court of record in which the witness is found. KRS 421.250(1). ......
  • State v. Wimbish, No. 22110-1-II.
    • United States
    • Court of Appeals of Washington
    • March 24, 2000
    ...of out-of-state witnesses.2 People v. Cavanaugh, 69 Cal.2d 262, 444 P.2d 110, 70 Cal.Rptr. 438, 440 (1968); State v. Closterman, 687 S.W.2d 613, 620 (Mo.Ct.App.1985); People v. McCartney, 38 N.Y.2d 618, 345 N.E.2d 326, 328, 381 N.Y.S.2d 855 (1976); State v. Blount, 200 Or. 35, 264 P.2d 419,......
  • Request a trial to view additional results

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