State v. Gunn
| Decision Date | 02 October 2001 |
| Docket Number | No. WD 59126.,WD 59126. |
| Citation | 57 S.W.3d 347 |
| Parties | STATE of Missouri, Respondent, v. Rose Marie GUNN, Appellant. |
| Court | Missouri Court of Appeals |
Irene C. Karns, Asst. Public Defender, Jefferson City, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.
Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.
Rose Gunn was convicted by a Boone County jury on July 26, 2000, on one count of the class D felony of endangering the welfare of a child in the first degree, in violation of § 568.045, RSMo 1994. On September 25, 2000, Gunn was sentenced by the court as a persistent misdemeanor offender to four years' imprisonment with the Missouri Department of Corrections. The defendant appeals her conviction to this court. We affirm the conviction.
Viewed in the light most favorable to the verdict (State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998)), the following evidence was adduced at trial. At around 11:00 a.m., on June 1, 1999, Rose Gunn called 911 to report that Jacob Caldwell, one of the children she was caring for at her in-home, state-licensed daycare center, had fallen and was non-responsive. Gunn then called the child's mother, Carrissa Jacobs, at work and told her the child "rolled off the couch and wasn't responding." Ms. Jacobs left work and rushed to Gunn's home, arriving in time to observe the emergency medical workers attending to her two and one-half month old son, Jacob, who was non-responsive, lying on the floor with his arms up above his head. Ms. Jacobs also testified that Jacob's eyes were "rolled back and ... fluttering," and that he "had a bruise on his left cheek, and... a really fat lip ... and he also had blood in his mouth and dry blood around his nose." Gunn told Ms. Jacobs at that point that "she was changing him and he rolled off the couch."
Shortly after regaining consciousness, Jacob was put into the ambulance to be transported to Boone Hospital. As Ms. Jacobs rode along in the ambulance with Jacob, she heard him "screaming in a way she had never heard him scream before." Ms. Jacobs called Jacob's father at work, who met them when they arrived at the hospital.
After arriving at the emergency room, Jacob was first examined by Dr. Kristin Malaker. Dr. Malaker observed that Jacob was suffering from a bulging fontanel (commonly known as the "soft spot"); that his pupils were unequally dilated, indicating neurological dysfunction; and that he had abrasions on his upper and lower lips and on the top of his tongue, suggesting "traumatic injury." Suspecting child abuse, Dr. Malaker reported the matter.
Detective John Short was assigned to the case. He interviewed Jacob's mother and his doctors, and reviewed the transcript of Gunn's 911 call. The detective first spoke with Gunn at her home, but eventually took her to the police station. Gunn was advised of her Miranda rights on the way to the police station, and she signed a waiver of those rights at the station. After she waived her rights, the detective told Gunn that the doctors contradicted her account of the incident by stating the injuries were not consistent with a roll off a couch and that a child of Jacob's age is not capable of rolling himself off a couch. Gunn then offered that Jacob had kicked himself off the couch as she was feeding him. The detective reminded Gunn that in her 911 call, she stated that he rolled off the couch as she was changing his diaper. At that point, Gunn told the detective that Jacob had been fussy earlier and that she had "bounced him on her knees," "held him out and turned him in half circle motions from side to side" and "rocked the child back and forth" in an effort to calm him. The detective then moved Gunn to another room, asked her to repeat her recollection about what had happened, and secretly taped her as she did so. When Gunn had finished, she was arrested and charged with child endangerment, pursuant to § 568.045.
At Gunn's trial, testimony was heard from the three doctors who treated Jacob and from one doctor who was testifying as an expert on child abuse and neglect, specifically on "shaken baby syndrome." Testimony was also heard from Detective Short, who arrested and interrogated Gunn; from a worker with the Missouri Department of Health, Bureau of Child Care, which had licensed Gunn's daycare center; and from Gunn herself. Each doctor who took the stand (Dr. Malaker, the emergency room physician; Dr. Bondurant, the neurosurgeon; Dr. Blair, the ophthalmologist; and Dr. Frasier, the child abuse expert), testified that the history provided by Gunn was not consistent with the injuries observed in Jacob Caldwell. Each doctor also testified that the injuries were recent, but could not give an exact time for the injuries.
All the doctors agreed that the injuries were not consistent with the story given by Gunn; that the injuries were the result of Jacob having been violently shaken; and that the injuries had occurred recently. Two of the doctors, Dr. Bondurant and Dr. Frasier, testified that the injuries occurred simultaneously to the child becoming unconscious and non-responsive. Dr. Frasier testified that retinal hemorrhage and subdural hematoma are classic injuries associated with a baby who has been violently shaken. Dr. Blair testified that he was one hundred percent certain that the retinal hemorrhages were caused by shaking. Dr. Bondurant stated that Jacob's injuries were non-accidental trauma and were not consistent with a fall from a couch but were consistent with shaking. Dr. Bondurant testified that an eighteen-inch fall from a couch was a trivial event that would not render a child unconscious and non-responsive.
Dr. Bondurant testified, additionally, that because subdural hematoma injuries are not "time stamped," the "history becomes imperative in pinpointing when it was inflicted." Dr. Bondurant stated that it is not the subdural hematoma that causes the child to become unresponsive; rather, it is the event that causes the subdural hematoma which causes the unresponsiveness, and that as soon as that event takes place, the baby is unresponsive. Dr. Frasier, also, testified emphatically that Jacob's injuries were sustained at the same time that he became unconscious:
Howard Keen, a child care supervisor with the Department of Health, Bureau of Child Care, testified that, since Gunn was licensed, she would have received a booklet of rules and regulations that specifically prohibits child care providers from using corporal punishment and specifically prohibits shaking. He further discussed other materials Gunn would have received as a licensed provider, which discussed "Shaken Baby Syndrome" and which would have put her on notice that shaking was a prohibited form of punishment. When Rose Gunn took the stand in her own defense and the prosecutor asked her whether she "knew all the risks associated with shaking a baby," she answered "yes," she did.
Rose Gunn was convicted by the jury on the charge of child endangerment and sentenced to four years' imprisonment. She appeals now to this court, basing her appeal on the contention that the State presented insufficient evidence from which a reasonable juror could have found beyond a reasonable doubt that Gunn shook Jacob Caldwell.
Standard of Review:
When an appeal challenges the sufficiency of the evidence, this court accepts as true all evidence favorable to the verdict, including all favorable inferences drawn therefrom, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). Our review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt and whether a reasonable juror could find each of the elements beyond a reasonable doubt. Clay, 975 S.W.2d at 139. "These principles apply whether the evidence is direct or circumstantial." State v. Gaver, 944 S.W.2d 273, 277 (Mo.App.1997).
"Weighing the evidence to determine whether the defendant was guilty beyond a reasonable doubt is the role of the jury and not the function of the reviewing court." State v. Simpson, 718 S.W.2d 143, 146 (Mo.App.1986) (citations omitted). Credibility and weight of testimony are matters for the jury to determine, and a jury may believe all, some or none of the testimony of a witness. State v. Mishler, 908 S.W.2d 888, 893 (Mo.App. 1995). Furthermore, the jury is entitled to accept the State's evidence as true, and reject the defendant's testimony as false. Id.
Sufficiency of the Evidence:
In her sole point on appeal, Gunn contends that the trial court erred in denying her motion for acquittal at the close of all the evidence because the State presented insufficient evidence from which a reasonable juror could have found beyond a reasonable doubt that Rose Gunn shook Jacob Caldwell. The statute under which Gunn was charged and convicted states:
(emphasis added).
Gunn points out that the State must prove each element of the offense beyond a reasonable doubt, pursuant to the United Supreme Court's ruling in In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The relevant elements of this offense which must be proved are: (1) the act itself; (2) the perpetrator of the act; and (3) knowledge.2 Gunn contends that the evidence failed to support the...
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State v. Smith
...bound by any self-serving claims made by Appellant and is entitled to reject any or all of his testimony as false. See State v. Gunn, 57 S.W.3d 347, 350 (Mo.App.2001) (holding that "the jury is entitled to accept the State's evidence as true, and reject the defendant's testimony as false").......
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...(Mo. banc 2002). Finally, the weight of a witness's testimony is for the jury, not the appellate court, to determine. State v. Gunn, 57 S.W.3d 347, 350 (Mo.App.2001). "`Weighing the evidence to determine whether the defendant was guilty beyond a reasonable doubt is the role of the jury and ......
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