State v. Gaver, 20893

• Decision Date: 23 April 1997
• Docket Number: No. 20893,20893
• Citation: 944 S.W.2d 273
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Tina GAVER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 273

944 S.W.2d 273

STATE of Missouri, Plaintiff-Respondent, v. Tina GAVER, Defendant-Appellant.

No. 20893.

Missouri Court of Appeals,

Southern District,

Division One.

April 23, 1997.

Ellen H. Flottman, Asst. Public Defender, Columbia, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Becky Owenson Kilpatrick, Assistant Attorney General, Jefferson City, for plaintiff-respondent.

GARRISON, Judge.

Tina Gaver (Defendant) was convicted by a jury of four counts of the class D felony of endangering the welfare of a child in the first degree, § 568.045, RSMo Cum.Supp.1993. On this appeal, she contends that there was insufficient evidence to support her convictions, and that the trial court violated her right to be free from double jeopardy.

Scott Gaver and Defendant had twin sons, Justin and John, who were born November 8, 1993. On January 2 or 3, 1994, Mike Austin, a social worker with the Division of Family Services (DFS) of Wright County, visited the Gavers' apartment in Mountain Grove, Missouri, to investigate a report of abuse and neglect. Austin discovered a slight bruise on John's left cheek, which Scott and Defendant explained by saying that John might have hurt himself while in his crib. When Austin asked Scott and Defendant to take John and Justin to the doctor, he was informed that they already had an appointment the following day for a two-month checkup.

Dr. Nancy Hayes examined both John and Justin the next day. She found that Justin had abrasions over the tip of his nose and his upper lip, which could have been caused by himself or someone else rubbing his face on a blanket. John had a torn frenulum, ¹ bruises Dr. Hayes again examined John on January 20, 1994, when Defendant took him to the hospital after he appeared to have trouble catching his breath. An x-ray was taken of John, but Dr. Hayes neither saw it nor alerted hospital personnel to look for anything other than pneumonia. John was released from the hospital on January 22 and, according to Dr. Hayes, she was not aware of any findings indicating trauma.

on his left and right cheeks, and a small hemorrhage, or blood spot, in his left eye. According to Dr. Hayes, the injuries to John could not have been self-inflicted or inflicted by Justin, and the bruises on his cheeks could have been caused by being slapped. When Dr. Hayes pointed out these injuries, Scott and Defendant explained that John and Justin slept together and that one could have rolled over the other. When she told them that their explanation did not match the injuries, the parents said that they had left the children with Scott's sister over the weekend and that perhaps something had happened there. Dr. Hayes informed Scott and Defendant that the injuries suffered by the children, especially John, were not accidental, that they needed to be more careful with whom they left their children, and that they needed to be very scrupulous about their attention to the children.

On January 25, 1994, a DFS worker visited the Gaver residence, observed both children, and watched Defendant change the children's diapers. While the worker made no notations in her report of any bruising on the children, she did tell her DFS supervisor that she saw a "little bit of redness" when their diapers were changed. John was returned to Dr. Hayes' office for a follow-up visit on January 28 and was examined by Dr. Goodwin, another physician in the clinic. Dr. Goodwin's notes contained no indication that he found any evidence of abuse. ²

On February 12, 1994, Defendant was away from the apartment for about fifteen minutes. When she returned, Scott was holding John, who was limp. Scott told her, "I think I dropped him." Defendant ran outside and yelled for someone to call an ambulance. Sheila Crisp, who was in a neighboring apartment, went to their apartment when she heard Defendant yelling for help. When she got there, she saw Defendant screaming and crying with a baby in her arms. Crisp took the baby from Defendant because she thought Defendant was too upset to hold him. John was taken by ambulance to the Texas County Hospital. One of the paramedics testified that while attending to John, he noticed some bruising with redness and swelling on John's back, as well as a small abrasion. He also testified that John had a bruise on his left buttock which appeared older than the bruise on his back.

John was transferred to Cox South Hospital in Springfield the same day, and had two seizures while en route. Dr. Griesemer, a pediatric specialist, attended to John upon his arrival and admitted him to intensive care. According to Dr. Griesemer, John would fluctuate between being extremely irritable and drifting in and out of consciousness.

A CT scan revealed two subdural hematomas (blood clots above the brain), which were causing John's fluctuating levels of consciousness, as well as bleeding inside his brain. X-rays were also taken and, according to Dr. Griesemer, "almost every film that came out had some kind of fracture on it." In particular, there was a compression fracture of the "L-5" (the lower back), two rib fractures, a fracture of the right tibia and fibula, and a fracture of the left femur. Dr. Griesemer also discovered bruises on John's chest, buttocks, lower right leg and right thigh.

Dr. Griesemer spoke with Scott and Defendant several times at the hospital. Scott told him that John had fallen from his arms onto the floor. Dr. Griesemer also spoke with Defendant about John's history because his injuries were not consistent with a four-hour-old injury. Dr. Griesemer testified that Defendant told him that John had some jerking episodes of his right arm around noon that day, but both Scott and Defendant denied Because of the discovery of John's injuries, Justin was taken from Sheila Crisp's home around 3:00 a.m. on February 13 by authorities and placed in temporary foster care with Onita Top. That night, Top slept in a chair holding Justin, who whimpered if held certain ways. As she prepared to give Justin a sponge bath later that morning, she noticed bruising on his buttocks, which she photographed before taking him to Cox South Hospital.

that John had sustained any other falls or injuries. According to Dr. Griesemer, there was no question that John had been abused, none of the injuries were accidental, the two injuries to the head were life threatening, and the injuries had occurred at various times over a period of up to six weeks.

Dr. James Wilson examined Justin at the hospital and found a deformity of Justin's right wrist and bruising over both buttocks. He diagnosed a fracture to the right wrist, and also discovered bilateral rib fractures involving several ribs, a "buckling-type" fracture to the left tibia, and a fracture to the right femur. He said that the bruises had occurred at different times and that some of the fractures had already started to heal, indicating that they were not of recent origin.

Scott and Defendant were subsequently interviewed by a DFS worker and a sheriff's deputy. Scott, who was placed under arrest, told the deputy that he had abused the children, but that all the abuse occurred when Defendant was either outside of the home or in an adjoining room. Defendant claimed she had no knowledge of Scott mistreating John and Justin, but she admitted that he had said that the babies were a "handful," he would get nervous and upset on occasion when the babies cried, and would sometimes have to "go outside." Defendant also related an incident, which she said could have been in late January or early February, when Scott was changing John's diaper in another room and she heard the baby crying. When she investigated, Scott said that he had heard the baby's leg pop, but she did not notice anything wrong with the baby. Defendant also said that the walls of their small apartment were thin and that she could hear if there were noises in the next room when Scott was alone with the children. She denied having any knowledge of her husband's abuse of their children, and stated that she never saw any bruising or other indication of injury, despite bathing and changing them daily.

Defendant was charged with four separate counts of endangering the welfare of a child in the first degree, § 568.045, RSMo Cum.Supp.1993. In each, she was charged with knowingly acting in a manner that created a substantial risk to the child's life, body and health, by failing to protect the child and provide a safe environment after being advised that someone was abusing the child and after observing further signs of abuse, to wit, bruises. Counts I and II charged Defendant with endangering the welfare of John from February 5 to February 12, 1994, and January 29 to February 5, 1994, respectively. Counts III and IV charged her with endangering Justin's welfare during the periods of February 6 to February 12, 1994, and January 16 to February 6, 1994, respectively. Following guilty verdicts, Defendant was sentenced to five years' imprisonment on each count, with Counts I and II to be served consecutively, Counts III and IV to be served consecutively, and Counts I and II to be served concurrently with Counts III and IV.

POINT I

In her first point relied on, Defendant contends that the trial court erred in overruling her motion for acquittal at the close of all the evidence because of the insufficiency of the evidence. She argues that there was insufficient evidence to prove (1) that she knew of the abuse by Scott, and (2) that she knew of the abuse during the time frame charged in Counts II and IV, to wit: before February 6, 1994.

An individual commits the crime of endangering the welfare of a child in the first degree if he or she "knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old." § 568.045.1, RSMo Cum.Supp.1993. "A person 'acts knowingly,' or with knowledge, (1) With respect to his conduct or to...