State v. Gargus

Decision Date26 November 2013
Docket NumberNo. ED 99233.,ED 99233.
Citation462 S.W.3d 417
PartiesSTATE of Missouri, Respondent, v. Linda GARGUS, Appellant.
CourtMissouri Court of Appeals

Craig A. Johnston, Columbia, MO, for appellant.

Chris Koster, Gregory L. Barnes, Jefferson City, MO, for respondent.

GARY M. GAERTNER, JR., Judge.

Introduction

Linda Gargus (Gargus) appeals the trial court's entry of judgment and sentence upon a jury's verdict finding her guilty of elder abuse in the first degree. On appeal, she argues the trial court erred, first, in entering judgment against her because the State merely proved that she failed to act when she did not have a duty to act; second, in submitting Instruction No. 8 to the jury; and third, in overruling her request for a mistrial because the jury returned inconsistent verdicts. We affirm.

Background

The State of Missouri charged Gargus with the class C felony of involuntary manslaughter in the first degree and the class A felony of elder abuse in the first degree stemming from the death of her mother, Lorraine Gargus (Victim), while in Gargus' care. The evidence adduced at trial revealed the following, viewed in a light most favorable to the jury verdict.

Victim was an eighty-one-year-old woman suffering from diabetes

. After falling in 2005, Victim determined she was unable to walk anymore and became bedbound. Gargus started staying with Victim and Gargus' father in 2008 to help out, and by December of 2009 she had moved in to care for them. In January of 2010, Gargus quit her job at the Clark County Nursing Home, where she had worked since 1973, to care for her parents full time.

Regarding her mother's care, Gargus testified to the following. She cooked for Victim, gave her daily sponge baths, and changed her clothes daily. Victim had been using a bedpan, but in January of 2010, she became incontinent. Gargus tried to give Victim her medicine, but Victim resisted medication, frequently hiding it or throwing it away.

Tammy Ramsey, an administrator at the Clark County Nursing Home where Gargus had worked, testified that Gargus received her certified nursing assistant (CNA) certification in 1989 and Gargus also had a certificate in insulin

administration. All CNAs received continuing training in infection control, treatment of bedsores, skincare, and basic hygiene. Ramsey further testified that the procedure to treat Stage I bedsores was intervention, such as extra padding on beds and repositioning, and that Stage II bedsores require a doctor's treatment and covering to help prevent infection.

Victim had been using fleece and protective coverings on her mattress since 2008 to prevent bedsores

. Gargus first noticed a bedsore the size of a tennis ball on Victim's upper buttocks on January 20, 2010. To care for the bedsore, Gargus continued using egg crate and fleece cushioning for Victim's bed, stopped using Depends diapers on Victim to allow the sore to get air, and attempted to turn Victim every hour—however, Victim was reluctant to change positions and Gargus described it as a “constant battle.” Victim's husband died on January 31, 2010. At the funeral, family members indicated they wanted to visit Victim, but Gargus discouraged visits. After her husband's death, Victim stopped eating and did not want to drink.

Cindy Hickman (Cindy), Victim's granddaughter, visited Victim on February 2, 2010, and described the mobile home as dirty and smelly. Victim's bed was located in the living room with animal cages stacked around it from floor to ceiling. Cindy testified there were “hundreds” of mice everywhere. Victim was completely covered in a blanket and her eyes were matted shut and she did not recognize Cindy, calling her by her sister Sylvia Winger's name.

Sylvia Winger (Winger), another granddaughter, also visited Victim on February 5. Winger testified that during her visit, Victim was alert and recognized her. Winger did not see anything alarming about Victim's health, but noted that Victim was completely covered in a blanket. Winger stated the home was messy, but she did not see any mice. Gargus testified that the mobile home did have mice.

On February 22, 2010, Gargus called an ambulance after noticing a wound

on Victim's foot. She had bathed Victim that morning and put lotion on her feet, but did not see an injury. Victim generally kept her feet uncovered, so any injury would be obvious. Gargus' son alerted her to the injury later that day. Victim was at first resistant to going to the hospital, but Gargus and emergency personnel were quickly able to convince her. The emergency personnel testified that Victim appeared confused and complained of a burning sensation in her rectum. As they moved Victim from her bed to the stretcher, a large mouse or small rat ran out of the bedclothes.

Dr. Neville Crenshaw (Dr. Crenshaw), an osteopathic physician who was Victim's attending doctor, testified that when Victim was admitted to the hospital she was “acutely and critically ill.” Victim had several large bedsores

in various stages of development. The main bedsore was on Victim's upper buttocks and Dr. Crenshaw descried it as a “huge, gaping, infected wound.” The infection had eaten the skin and subcutaneous fat around the bedsore, and an investigator for the Missouri Department of Health and Senior Services (DHSS) testified she could see Victim's tailbone through the basketball-sized wound. The infection tested positive for staphylococcus (staph) and had turned septic —i.e., had spread to her bloodstream. The surgical floor nurse testified the bedsore

smelled like rotting flesh. As well, the emergency room nurse testified Victim had open sores over most of her body and large bedsores on her heels.

Dr. Crenshaw further testified that Victim's second main injury was the trauma to her left foot. Her skin and tissue were removed down to tendon and bone, consistent with having been eaten by a rodent, as witnessed by the emergency personnel. Victim, however, was in no pain from the wound

due to the neuropathy, or nerve damage caused by diabetes, in her lower left leg. The following day, an orthopedic surgeon amputated Victim's leg and foot below the knee. He noted the leg was no longer getting any blood supply and was cold and blue. Moreover, he could feel gas under the skin, consistent with gangrene. Last, Dr. Crenshaw testified Victim was malnourished and “profoundly dehydrated.”

Victim died on March 11, 2010. Her autopsy revealed that the cause of death was multiple organ failure due to septicemia

, stemming from the multiple bedsores and gangrene of the left foot. The medical examiner testified that Victim's death was caused by the bedsore on her back, and that early care of the bedsore could have stopped the disease from progressing. He noted bedsores occur when patients lie on their backs for long periods of time without moving. He further testified the failure to provide a clean environment, movement treatment for the bedsore, and medical care also led to Victim's death.

After Victim was admitted to the hospital, Kris Chamley (Chamley) from DHSS received a hotline report of Victim's condition. She requested that Sheriff Paul Gaudette of Clark County (Sheriff Gaudette) assist her in investigating Victim's injuries. Together, they and several more investigators went to the mobile home shared by Victim, Gargus, and Gargus' son. Gargus consented to a search. The investigators testified that as they approached the mobile home, they could smell rotting flesh from outside. Inside, there were animal cages stacked on a bedframe, the floor, and furniture; investigators counted a total of 40 animals.1 There was fresh and old animal feces in every room. A large rodent ran across the foot of one investigator. There was moldy food on the kitchen counters and sink. In the bathroom, the toilet had waste in it and the sink and bathtub were covered in cobwebs and filth. Gargus reported the toilet had been broken for several weeks. Gargus informed them the clothes Victim had been wearing were in a washtub in the kitchen, and inspection of the washtub revealed foul-smelling muddy grey water with fleas in it. Gargus testified that she had burned Victim's mattress and bedding once she learned Victim had an infection.

At the close of evidence, Gargus moved for acquittal, which the trial court denied. During the jury instruction conference, Gargus objected to Instruction No. 8 on the grounds that it: (1) assumed Gargus took on the care of Victim; and (2) did not comport with the relevant Missouri Approved Instruction (MAI), in that the State has added additional elements into this Instruction, where they do not exist.” The trial court overruled the objection and submitted Instruction No. 8 to the jury. Following deliberations, the jury returned a verdict of not guilty on Count I, involuntary manslaughter in the first degree, and of guilty on Count II, elder abuse in the first degree. At Gargus' request, the trial court polled the jury, and each member of the jury confirmed that they found Gargus guilty of elder abuse in the first degree.

After the trial court released the jury for the evening, the court sent the bailiff into the jury room to retrieve the instructions and unused verdict forms. As the court was putting the forms in order, it noticed Verdict Form F finding Gargus guilty of the lesser-included offense of elder abuse in third degree had also been signed by the foreperson. Gargus moved for a mistrial, citing the inconsistent verdicts. The trial court denied the motion for a mistrial, finding that the polling of the jury had cured any inconsistency between the signed guilty-verdict form presented to the court and the signed guilty-verdict form left in the jury room. The jury reconvened for the penalty phase of the trial and...

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2 cases
  • State v. Voss
    • United States
    • Missouri Court of Appeals
    • January 12, 2016
    ...(Mo. banc 2000).b. Conduct and Duty Criminal liability is premised on a defendant's conduct involving voluntary acts. State v. Gargus, 462 S.W.3d 417, 421 (Mo.App.E.D.2013) ; section 562.011.1 RSMo 2000.8 “Voluntary acts include ‘an omission to perform an act of which the actor is physicall......
  • State v. Shell
    • United States
    • Missouri Court of Appeals
    • May 31, 2016
    ...voluntary acts." State v. Voss, No. ED101396, 488 S.W.3d 97, 110, 2016 WL 145727, at *6 (Mo.App.E.D. 2016) (citing State v. Gargus, 462 S.W.3d 417, 421 (Mo.App.E.D. 2013) ). A voluntary act can be an omission to perform an act. Id. However, a defendant cannot be guilty of an offense "based ......

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