State v. Dunson

• Decision Date: 17 November 1998
• Docket Number: No. WD,WD
• Citation: State v. Dunson, 979 S.W.2d 237 (Mo. App. 1998)
• Parties: STATE of Missouri, Respondent, v. William O. DUNSON, Appellant. 54278.
• Court: Missouri Court of Appeals

Page 237

979 S.W.2d 237

STATE of Missouri, Respondent, v. William O. DUNSON, Appellant.

No. WD 54278.

Missouri Court of Appeals Western District.

Nov. 17, 1998.

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

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City Philip M. Koppe, Assistant Attorney General, Kansas City for respondent

Before Presiding Judge ALBERT A. RIEDERER, Judge HAROLD L. LOWENSTEIN and Judge LAURA DENVIR STITH.

LAURA DENVIR STITH, J.

Defendant-Appellant William Dunson was convicted of second-degree murder, three counts of endangering the welfare of a child in the first degree, two counts of assault in the second-degree, two counts of armed criminal action, and a single count of abuse of a child. On March 27, 1997, the defendant was sentenced to 75 years in prison. The defendant asserts the trial court erred in: (1) overruling his motion for judgment of acquittal, (2) precluding him from calling a witness to impeach a witness for the State, (3) sentencing him for both endangering the welfare of a child and abuse of a child in alleged violation of the double jeopardy clause, and (4) permitting the State to present evidence which did not tend to prove his propensity to assault or abuse his children. Finding the evidence supports the judgment and that no prejudicial error occurred, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 27, 1996, the defendant received a telephone bill containing charges for three calls to phone-sex lines. The defendant questioned his sons to find out if one of them had made the calls. When the defendant asked his two elder boys, William, then age 12, and Dayvon, then age 10, if they had made the calls, Dayvon told the defendant he believed their sister, Elena, had one of the phone numbers.

Elena, then 13 years old and 27 weeks pregnant, was summoned by the defendant. Elena testified that when she walked up the stairs to see the defendant, she could feel her baby moving and kicking. The defendant asked Elena if she made the calls and she denied doing so. Upon her denial, the defendant began to beat Elena, hitting her leg with a croquet mallet and smacking her in the face with the back of his hand. Elena fell against a tool chest. When she got to her feet, the defendant kneed her in the abdomen. Elena testified that after the defendant kneed her abdomen, she felt the baby fall against her kidneys and slide down to her bladder. She further stated that she grabbed her stomach proclaiming, "My baby." To this, the defendant replied, "D right your baby, you're costing me money." He then told Elena to bring him the phone number she had. Elena retrieved the phone number, but when she showed it to the defendant he realized it was not the number to which the telephone calls on his bill had been made. Elena left the room complaining of stomach pains.

Next, the defendant began hitting Dayvon and William. The defendant asked another one of his sons, Damykis, to bring him a leather belt soaked in a pot of hot water. He instructed Dayvon and William to remove their clothes and then used the hot, wet belt to whip both boys all over their bodies. It was William who finally told his father that he had made the calls. The defendant whipped William with the belt again and then ordered the boys to gather their clothes and leave the room.

Shortly thereafter, Elena telephoned her mother, Lisa, to tell her what had happened. Lisa returned home and bandaged the children's injuries. When she felt Elena's stomach, she did not feel the baby moving. The following day, March 28, 1996, the defendant asked Elena if her baby had moved. When Elena told him that it had not, he said, "If I killed your baby, good because that little b_____ didn't deserve to live anyway." Lisa informed the defendant that she was going to have one of her friends drive Elena to the hospital, to which the defendant responded, "Don't you ever ask someone to do something for my daughter, my child." At that point, Lisa left the house and called the police from a pay phone.

The police arrived, called an ambulance for Elena, arrested the defendant for child abuse, and took William and Dayvon to the hospital. At the hospital, Richard Marble, M.D., examined Dayvon and William and found numerous marks and bruises on both boys consistent with injuries from a beating with a belt. An ultrasound was performed on Elena which showed no fetal heartbeat. On March 29, 1996, 41 to 42 hours after the defendant's beating, Elena's daughter, Kaylesha Davis, was delivered stillborn by Sarah Reynolds, M.D. Dr. Reynolds opined that Kaylesha would have been a viable fetus at 27 weeks and 5 days of gestation.

At trial, several physicians testified as to their opinion of Kaylesha's time of death in relation to the defendant's beating of Elena. Dr. Reynolds testified to observations of damage to the fetus consistent with trauma and estimated that the fetus had been dead approximately 48 hours prior to her delivery. The Jackson County Medical Examiner, Thomas Young, M.D., testified that the cause of death was maternal blunt trauma and opined that Kaylesha had been dead in utero for no longer than 48 to 72 hours. The defendant solicited contrary testimony from Michael Berkland, M.D., as an expert in the field of pathology. Dr. Berkland testified that evidence of skin maceration and autolysis of the organs showed the baby had been dead in utero for closer to three days prior to the delivery. However, the State supplied a rebuttal expert, Robert Garola, M.D., who opined that the skin maceration was minor and estimated Kaylesha's death was closer to 6 to 24 hours before delivery.

The jury found the defendant guilty of second-degree murder of Kaylesha, endangering the welfare of Elena, William and Dayvon in the first degree, second degree assault of Elena and William, armed criminal action of Elena and William, and abuse of Dayvon. He was sentenced to a total of 75 years in prison.

II. STANDARD OF REVIEW

We give deference to the trier of fact when reviewing the sufficiency of the evidence supporting a criminal conviction. State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993). Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id., citing, State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989). We view the evidence in the light most favorable to the prosecution. Id.

III. EQUALLY VALID INFERENCES RULE

The defendant's first point on appeal asserts that the trial court erred in denying his motion for judgment of acquittal and in entering a judgment of conviction in accordance with the jury verdict for second-degree murder. The defendant argues that the State's evidence was insufficient to establish his guilt for the murder of Kaylesha. He contends the evidence simply supported two "equally valid inferences," one that he caused Kaylesha's death, and the other that something else did for which he was not responsible. The equally valid inferences rule provides that when "the evidence presents two equally valid inferences, one of defendant's guilt and the other of his innocence, it does not, as a matter of law, establish guilt beyond a reasonable doubt." State v. Dooley, 919 S.W.2d 539, 541 (Mo.App.1995).

We reject defendant's argument on two grounds. First, our Supreme Court has unequivocally rejected the equally valid inferences rule, stating:

Because the equally valid inferences rule is at war with the due process standard governing an appellate court's review of the sufficiency of evidence, the equally valid inferences rule should no longer be applied. Rather, the standard to be applied is the due process standard ...

State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998). Thus, even if we believed that the evidence supported two equally valid inferences, one of innocence and one of guilt, we would not reverse, because there was substantial evidence in the record which, if believed by the jury, supported the jury's finding that defendant was guilty beyond a reasonable doubt.

Second, we disagree with defendant's contention that the evidence supported equally valid inferences. Defendant asserts that his expert testimony, that Kaylesha displayed physical conditions normally not present unless a fetus has been dead in utero for more than 50 hours, supported his theory that Kaylesha died from other causes before he kneed Elena in the abdomen. The defendant also cites to evidence that Elena had poor health and poor prenatal care, and argues that Elena's pregnancy was at risk for intrauterine growth retardation and stillbirth, and asserts that this could have been the cause of Kaylesha's death. He argues that this evidence permitted "equally valid inferences" to be drawn that Kaylesha either died before he kneed Elena in the abdomen, or died after he kneed Elena's abdomen.

We do not agree. Although the defendant presented an expert who testified that Elena's fetus exhibited physical signs which showed that the fetus had been dead close to a day prior to when the defendant beat Elena, ¹ the State also presented expert testimony contrary to the defendant's theory. ² Further, the defendant failed to establish any substantial evidence to support his theory that the fetus died from intrauterine growth retardation prior to the beating. No testimony was offered regarding the causes of intrauterine growth retardation and how or whether intrauterine growth retardation played any part in Kaylesha's death.

In addition to this expert testimony, the State presented other evidence from which the jury could conclude the fetus was alive prior to when the defendant beat Elena. For example, Elena testified that she could feel the baby kicking before the defendant beat her, that she felt the baby drop down into her bladder after the defendant kneed her in the abdomen, and that she never felt the baby move again after the beating. The...