State v. Esker
| Decision Date | 06 September 1983 |
| Docket Number | No. WD,WD |
| Citation | 658 S.W.2d 49 |
| Parties | STATE of Missouri, Respondent, v. Akbar ESKER, Appellant. 34110. |
| Court | Missouri Court of Appeals |
Hale W. Brown and Hale Brown, Jr., Kirkwood, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and DIXON and NUGENT, JJ.
Defendant appeals his conviction by a jury of abuse of a child, sec. 568.060 1, for which he was sentenced to five years imprisonment. Defendant challenges the trial court's use of a jury instruction based on a combination of MAI-CR2d 2.12 and MAI-CR2d 22.12. That instruction, he contends, was used contrary to the relevant notes on use and erroneously permitted the jury to find him guilty without determining whether he was the principal or the agent involved in the offense. We affirm.
Because defendant does not challenge the sufficiency of the evidence on this appeal, we need not review the evidence in detail. The necessary facts are as follows.
The defendant and his co-defendant Olgica Kocevski lived together in a rented house in Cape Girardeau, Missouri, from December, 1981 to April, 1982. Living with them was Ms. Kocevski's seven year old son, Dejan.
Dejan testified that the defendant put him in the basement of the house and that during the four months in question, he was never permitted outside or upstairs. Nor was he permitted to see his mother. He saw only the defendant who brought him food.
Neighbors testified that they had seen the boy only twice--on the day he moved in and on April 13, 1982, when a fire broke out in the house and the boy was carried out by fireman Robert Thompson. Mr. Thompson testified that in response to a call, he entered the basement of the house and found Dejan unconscious in the room with no toys books, games, or food other than three cookies and a snack cake. A draw chain and padlock were on the basement door.
Dr. Jesse Ramsey, who treated Dejan for smoke inhalation, hypoxia, hypothermia and shock, testified that the boy was severely malnourished with thin, wasted arms and ribs sticking out through the skin.
At the time of the fire, Ms. Kocevski and the defendant were in Peoria, Illinois, where they had been for several days. On their return, they were both charged with violation of sec. 568.060.
On May 14, 1982, a preliminary hearing on motion for change of venue was held in Cape Girardeau in which Ms. Kocevski testified that defendant had locked her son in the basement and that she was afraid either to let the boy out or to visit him because the defendant had threatened to beat her if she did so. In fact, she related, when he once observed her looking down into the basement at the boy, he did beat her.
On July 27, 1982, Judge Conley heard the testimony of Dr. Jerry Wessel, staff psychiatrist at Fulton State Hospital, and determined that Ms. Kocevski was incompetent to testify at the defendant's trial. The court found her to have been competent at the time of the May 14 hearing, however, and admitted the transcript of that testimony.
At the July 27 pretrial hearing, reference was made by defense counsel to the fact that Ms. Kocevski had been charged with the same offense, that she had pled guilty, but that her plea had not been accepted. In his brief, defense counsel informs us that the plea could not be accepted because the court found that she was incompetent to know the nature of what she was doing.
At trial, defendant testified that he had seen Ms. Kocevski beat the boy with a wooden spoon and a belt, that the boy had been free to come upstairs from the basement but chose not to, that Ms. Kocevski had visited Dejan in the basement and that she had put the lock on the basement door herself because of fear of intruders. He further testified that when he drove Ms. Kocevski to Peoria on Saturday, April 10, he did so at her insistence. He intended only to find her a place to stay overnight while he visited his wife. He fully expected Ms. Kocevski to return to their home in Cape Girardeau by bus the next day. He did not learn for several days that she was, in fact, still in Peoria. This testimony was at least partially contradicted by the manager of the motel where Ms. Kocevski stayed. The manager testified that she saw the defendant at the motel on Sunday, April 11.
Over defendant's objection, the court submitted Instruction No. 5 to the jury as follows:
A person is responsible for his own conduct and he is also responsible for the conduct of another person committing an offense if he acts with him with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
If you find and believe from the evidence beyond a reasonable doubt:
First, that from January 29, 1982, through April 13, 1982, in the County of Cape Girardeau, State of Missouri, the defendant or Olgica Kocevski inflicted cruel and inhuman punishment upon Dejan Kocevski by locking said Dejan Kocevski alone in the basement apartment of a residence located at 141 South Sunset, Cape Girardeau, Missouri, and failing to provide such child with adequate nutritional care and/or adequate medical and dental care and/or adequate educational care and/or adequate emotional care, and
Second, that Dejan Kocevski was then less than seventeen years old, and
Third, that in engaging in the conducts submitted in this instruction the defendant or Olgica Kocevski acted knowingly, then you are instructed that the offense of abuse of a child has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the commission of abuse of a child, the defendant acted together with Olgica Kocevski in committing that offense, then you will find the defendant guilty of abuse of a child.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the propositions submitted in this instruction, you must find the defendant not guilty of that offense.
The jury found defendant guilty of child abuse, set his punishment at five years imprisonment and a fine of $5,000. On August 26, 1982, the trial court sentenced defendant to five years imprisonment.
In challenging the submission of Instruction No. 5 on this appeal, defendant actually raises three points: First, that the defendant was charged by information only with being a principal in the commission of the offense but the instruction inconsistently permitted the jury to find him to be an accessory. Second, that the instruction was used contrary to the MAI-CR2d 2.12 Notes on Use. Third, that the instruction did not require the jury to determine whether he was a principal or an accessory contrary to defendant's right to have all twelve jurors agree on his capacity.
Defendant's first point that the instruction allowing the jury to find him to be an accessory was contrary to the information charging him only with being a principal is without merit. The information charges defendant with "either acting alone or knowingly in concert with another" in violation of sec. 568.060. The instruction permits the jury to find the defendant guilty if he or Olgica Kocevski knowingly inflicted cruel and inhuman punishment upon Dejan Kocevski and (if the jury found the latter) that the defendant acted together with her in the promoting or furthering of that offense. (See element four of the instruction.) The information and the instruction are not inconsistent.
Defendant's second point requires an examination of MAI-CR2d 2.12 on which the first paragraph of the instruction is based. MAI-CR2d 2.12 first appeared in its present form by order of the Supreme Court dated April 30, 1982, published at 630 S.W.2d xxx. Although the order was effective January 1, 1983, the Supreme Court expressly stated at xxviii that use prior to that date "shall not be presumed to be error." The paragraph is used here in accordance with the Supreme Court's instructions that it should precede the elements of the applicable offense in one combined instruction.
Note on...
To continue reading
Request your trial
-
85 Hawai'i 462, State v. Fukusaku
...Commonwealth v. Ramos, 31 Mass.App.Ct. 362, 577 N.E.2d 1012 , review denied, 411 Mass. 1103, 581 N.E.2d 481 (1991); State v. Esker, 658 S.W.2d 49 (Mo.Ct.App.1983); State v. Bockman, 37 Wash.App. 474, 682 P.2d 925, review denied, 102 Wash.2d 1002 (1984). Therefore, a specific unanimity instr......
-
State v. Brown
...denied, 411 Mass. 1103, 581 N.E.2d 481 (1991); Fitzpatrick v. State, 194 Mont. 310, 638 P.2d 1002, 1011-12 (1981); State v. Esker, 658 S.W.2d 49, 53-54 (Mo.Ct.App.1983); State v. Hoffman, 116 Wash.2d 51, 804 P.2d 577, 605 (1991); Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288, 292-93 (1979......
-
State v. Marks
...ways the defendant actually participated, even though all agree that he was, in fact, a participant. Our own case of State v. Esker, 658 S.W.2d 49, 53 (Mo.App.1983) holds the We note that there was evidence to support each of the three statements hypothesized. II The indictment, as before n......
-
U.S. v. Wilson
...Missouri prosecution under section 568.060.1(1) that arguably did not involve violent and aggressive conduct. See State v. Esker, 658 S.W.2d 49 (Mo.Ct.App.1983) (affirming the defendant's child abuse conviction under section 568.060.1(1) for locking his girlfriend's seven-year-old son in th......