State v. Frappier, 20868

• Decision Date: 04 April 1997
• Docket Number: No. 20868,20868
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Steven FRAPPIER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 859

941 S.W.2d 859

STATE of Missouri, Plaintiff-Respondent, v. Steven FRAPPIER, Defendant-Appellant.

No. 20868.

Missouri Court of Appeals,

Southern District,

Division One.

April 4, 1997.

David L. Simpson, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Christine M. Blegen, Assistant Attorney General, Jefferson City, for respondent.

PREWITT, Judge.

Defendant Steven Frappier appeals from his conviction of involuntary manslaughter of his three-month-old son, Matthew.

On November 3, 1993, Defendant was seen in his home with Matthew at 7:45 a.m. by a neighbor. The neighbor testified at trial that Matthew appeared to be normal. At 9:39 a.m., paramedics were dispatched to Defendant's home where they saw Defendant kneeling over Matthew upon their arrival minutes later. According to the testimony of one of the paramedics, Matthew was not breathing, did not have a heartbeat, and appeared cyanotic, a condition indicating that breathing has stopped for a period of time.

After attempting unsuccessfully to revive Matthew, the paramedics transported him to the hospital where a doctor was finally able to get his heart beating again. Later, however, doctors determined that Matthew was brain dead. He was declared dead and taken off life-support systems on November 5, 1993.

An autopsy later revealed Matthew's brain was swollen inside his skull, a condition commonly caused by lack of oxygen, and that he had "metabolic acidosis" which results from a lack of breathing. The autopsy also revealed Matthew had suffered fractures to two bones in his left forearm in the days before his death, as well as an injury to his spleen around the time of his death. Shortly after Matthew's death, an eight-year-old child of Defendant's girlfriend living at Defendant's home told a Missouri Division of Family Services worker that Defendant "hits" and had been physically abusive toward Matthew.

A witness who had shared a jail cell with Defendant in December, 1993, testified Defendant had told him that at the time of Matthew's death he had become frustrated with Matthew's crying and had picked him up by his neck, shook him and threw him down. According to the witness, Defendant came back later to find Matthew pale and cold. The doctor who performed the autopsy eventually concluded Matthew had died from asphyxiation (lack of oxygen), but another doctor who examined the autopsy reports testified the cause of death could not be determined.

Defendant was charged with involuntary manslaughter, and a jury found him guilty of that charge on January 5, 1996. He received a sentence of seven years. Defendant's first point relates to the sufficiency of the evidence for the conviction:

The trial court erred in denying [Defendant's] motion for a judgment of acquittal ... and in submitting the case to the jury ... in that there was no evidence that [Defendant] acted recklessly; the state's evidence was that [Defendant] asphyxiated Matthew by squeezing his neck with both hands for three to four minutes, this evidence could only support a finding that [Defendant] acted intentionally, not recklessly, in causing Matthew's death.

When reviewing the sufficiency of the evidence, this Court accepts as true all evidence and inferences favorable to the state and disregards all evidence and inferences to the contrary. State v. Pierce, 932 S.W.2d 425, 427 (Mo.App.1996). We do not weigh the evidence or determine the reliability or credibility of witnesses. Id. We review the evidence to determine whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.

Section 565.024, RSMo 1994 provides, in relevant part:

1. A person commits the crime of involuntary manslaughter if he:

(1) Recklessly causes the death of another person; ...

A person "acts recklessly" or "is reckless" when the person acts in such a manner that there is a substantial and unjustifiable risk that the person will cause the death of another, and such person's conscious disregard of that risk constitutes a gross deviation from what a reasonable person would do under the circumstances. Pierce, 932 S.W.2d at 427.

Defendant argues that the only evidence submitted on the issue of his mental state shows that victim's death resulted from intentional, not reckless acts. Specifically, Defendant refers to the testimony of the doctor who performed the autopsy that Matthew would have had to have been choked for three to four minutes to die by asphyxiation. Defendant argues picking up a baby and choking it for three or four minutes are intentional acts. However, the doctor also testified asphyxiation could have occurred in several different ways, including holding a hand over Matthew's nose and mouth, preventing air from going into the airway.

The witness who claimed that Defendant had told him about what happened at the time of Matthew's death testified as follows:

Q. Did Defendant make any statement to you as to whether he could get Matthew to be quiet that morning?

A. Yes, he said that Matthew was crying and wouldn't be quiet.

....

Q. Did he make any statements to you as to what he did based upon Matthew not being quiet?

A. Yes. He said he went into Matthew's room and picked Matthew up by the neck.

Q. Did he say what he did with Matthew when he picked him up by the neck?

A. He said he shook Matthew, shook him by the neck with his hands, and threw him back down on the bed.

Q. Did the defendant ever state whether he was able to recall everything that he did?

A. No. He did say that he wasn't able to recall everything he did because he blacked out.

Q. Did the defendant tell you whether he noticed anything wrong with the baby after he threw Matthew on the bed?

A. Yes. He said he noticed the baby was pale and was cold when he touched the baby.

Based on the above evidence, it is possible to infer that Defendant did not intentionally choke Matthew, but tried to quiet him by holding his neck and thereby asphyxiated him. A reasonable juror could determine that there was a substantial and unjustifiable risk that quieting Matthew in this manner would cause Matthew's death and that Defendant's conscious disregard of that risk was a gross deviation from what a reasonable person would do under the circumstances. See Pierce, 932 S.W.2d at 427-28 (Mo.App.1996) (affirming involuntary manslaughter conviction of defendant who, after altercation with victim, backed a truck into him and then ran over him).

Quoting from State v. Isom, 906 S.W.2d 870, 873 (Mo.App.1995), Defendant argues "evidence that a defendant intended the act which caused the death, even if he did not intend the result, supports submission of voluntary, not involuntary, manslaughter." In Isom, the defendant claimed he intended to shoot victim, but not in such a way as to kill him. However, the Isom court noted that intending to shoot the victim in the upper portion of the body went beyond recklessness. 906 S.W.2d at 873. In State v. Morris, 784 S.W.2d 815 (Mo.App.1990), which the Isom court cites, the defendant admitted to striking his wife with a two-by-four board after she revealed she had had an affair. Id. at 816.

Unlike in those cases, here there was evidence Defendant may not have intended the act, i.e., asphyxiating Matthew, which caused death. The jury would know that intentionally killing one's child is not a natural or usual act. It could have found that Defendant was trying to quiet rather than kill the child, but in doing so acted recklessly, causing the child's death. There was sufficient evidence to sustain a conviction for involuntary manslaughter; therefore, the trial court did not err in denying Defendant's motion for judgment of acquittal. Point denied.

Defendant's second point claims the State failed to prove the corpus delicti in that Matthew was "just as likely" to have died from not breathing during the time he was taken to the hospital as he was during the time Defendant was holding Matthew's neck.

The corpus delicti in a homicide case consists of (1) a person's death, and (2) the criminal agency of another. State v. Weston, 912 S.W.2d 96, 100 (Mo.App.1995). The...