State v. Kenney
| Decision Date | 11 August 1998 |
| Docket Number | No. WD,WD |
| Citation | 973 S.W.2d 536 |
| Parties | STATE of Missouri, Respondent, v. Sandra Marie KENNEY, Appellant. 55587. |
| Court | Missouri Court of Appeals |
Danieal H. Miller, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.
Before ULRICH, C.J., P.J., and SMART and EDWIN H. SMITH, JJ.
Sandra Marie Kenney appeals her convictions following jury trial for two counts of first degree assault, section 565.050, 1 and sentence to two consecutive fifteen-year terms of imprisonment for knowingly causing serious physical injury to Naomi Baum and her unborn child by hitting Ms. Baum and injecting ethylene glycol and cocaine into her body. Ms. Kenney raises several points on appeal. She claims that (1) the trial court erred in denying her motion for change of venue, (2) the trial court never acquired jurisdiction of the charges against her because of defects in the original complaint and the information, (3) insufficient evidence was presented to prove the elements of first degree assault against Naomi Baum, (4) insufficient evidence was presented to prove the elements of first degree assault against Ms. Baum's unborn child, and (5) the trial court erred in denying her motion for a new trial. The judgment of convictions is affirmed in part and reversed in part, and the case is remanded.
Gregg Kenney was separated from his wife, Sandra Kenney, when he began an intimate relationship with Naomi Baum in May 1996. Ms. Kenney became very upset that her husband was seeing Ms. Baum and began to threaten Ms. Baum that she would beat her up. By the end of June, Ms. Kenney became obsessed with Ms. Baum, who had become pregnant with Mr. Kenney's child. She asked friends to telephone Ms. Baum to tell her "she was being watched." Ms. Kenney called Ms. Baum's supervisor and told him Ms. Baum was using drugs. She also asked her friends to find somebody to key Ms. Baum's car and slash her tires.
Ms. Kenney's obsession with Ms. Baum escalated toward the end of summer, and she began to recruit people to assault Ms. Baum and to kill her and her baby. Ms. Kenney told a friend that if something happened to the baby, her husband would come back to her. Eventually, she recruited Janet Lene, Richard Brinkman, and Mike Brice to attack Ms. Baum by threatening to have Mr. Brinkman sent back to prison for associating with Ms. Lene (apparently a violation of his parole). She told them that the purpose of the attack was to kill Ms. Baum and the baby.
Ms. Kenney devised three different plans to carry out the attack. Her first plan was to deliver a pizza to Ms. Baum with a poisonous substance inside of it. Her second plan was to follow Ms. Baum to her children's school and assault her there. Her third plan involved breaking into Ms. Baum's house when Mr. Kenney was at work and assaulting her. The third plan was finally carried out in November 1996.
Prior to the night of the attack, Ms. Kenney purchased $100 worth of cocaine from Mr. Brice. She wanted the threesome to inject Ms. Baum with the cocaine during the attack to kill her and her baby. She also gave Ms. Lene some money to purchase masks and glass cutters for the attack. On the night of November 20, 1996, Ms. Lene, Mr. Brinkman, and Mr. Brice went to Ms. Baum's house. They entered the house through a window in the basement. Ms. Baum, who had heard noises, turned on the basement light to see who was there. When the light came on, Ms. Lene fled. Mr. Brinkman and Mr. Brice sprayed Ms. Baum with mace and pushed her into a chair in the kitchen. Mr. Brice then injected her in the arm and in the stomach with cocaine and antifreeze. Both men hit Ms. Baum and kicked her in the face and in the stomach until she passed out.
In the meantime, Ms. Lene ran to her car and was driving around the block when she saw Mr. Brinkman and Mr. Brice running toward her. The men got in the car, and the threesome drove to Ms. Lene's house where they changed clothes. They put the clothes, shoes, masks, and syringes in a bag and took the bag to Travis Wood's house. Ms. Lene asked Mr. Wood to get rid of the evidence, and the next day he threw the bag in the woods. Some time later, Mr. Wood led police to the clothing and syringes. Lab tests revealed that the syringes contained cocaine and ethylene glycol, a component of antifreeze.
After the attack, Ms. Baum called for her children who were in another part of the house. Police and an ambulance were then called, and Ms. Baum was rushed to a nearby hospital. An emergency room doctor examined Ms. Baum and found that she had multiple bruises and abrasions on her face, around her eyes, on the side of her head, and on her neck and upper chest. Her nose was broken. She also had puncture wounds and bruising on her abdomen, belly, belly button, and umbilicus which were consistent with wounds caused by a hypodermic needle. A urine drug screen showed cocaine in her system. The hospital did not test for ethylene glycol because there was no indication at the time that it was involved in the case.
Upon hearing about the attack the next day, Ms. Kenney seemed very excited and "thrilled that it happened." After Ms. Lene was arrested for the assault, Ms. Kenney talked to her in jail and told her not to tell police that she was involved. Eventually, Ms. Kenney was arrested and charged with two counts of first degree assault. A jury found her guilty of the charges. The court sentenced Ms. Kenney to two consecutive fifteen-year terms of imprisonment. This appeal followed.
In her first point on appeal, Ms. Kenney claims that the trial court erred in denying her motion for change of venue based on section 545.473. She contends that her submission of eight affidavits stating that the inhabitants of Cole County were prejudiced against her entitled her to a change of venue as a matter of right under Rule 32.04 and section 545.490 and that the trial court erred in applying section 545.473, the Cole County venue statute.
Rule 32.04 and section 545.490 provide the procedure for obtaining a change of venue in a criminal proceeding for cause. Rule 32.04 provides that a change of venue may be ordered upon timely written application of the defendant for the following reasons:
(1) the inhabitants of the county are prejudiced against the defendant; or
(2) the state has an undue influence over the inhabitants of the county.
Rule 32.04(a). Section 545.490 provides, in pertinent part:
in all cases in counties in this state which now have or may hereafter have a population of less than seventy-five thousand inhabitants if such petition for change of venue is supported by the affidavits of five or more credible disinterested citizens residing in different neighborhoods of the county where said cause is pending, then the court or judge in vacation, shall grant such change of venue, as of course, without additional proof.
§ 545.490. In this case, Ms. Kenney filed a timely written application of change of venue. In support of her motion, Ms. Kenney filed, pursuant to section 545.490, eight affidavits of citizens residing in different neighborhoods of Cole County addressing the pre-trial publicity of the case and the prejudice of the county's inhabitants against her. In response to Ms. Kenney's motion, the prosecutor argued that section 545.473, the Cole County change of venue statute, applied rather than the section 545.490 "for cause" change of venue statute. Under section 545.473, a defendant with a case filed in a county with department of corrections and human resources facilities with a total average yearly inmate population in excess of two thousand persons shall show, to obtain a change of venue, either that the inhabitants of the county are prejudiced against him or that the state has an undue influence over the inhabitants of the county. § 545.473; State v. Gilley, 785 S.W.2d 538, 539 (Mo. banc 1990). The trial court agreed that section 545.473 was the applicable statute in this case and found that Ms. Kenney failed to make the necessary showing for change of venue. The question presented in Ms. Kenney's first point on appeal, therefore, is which change of venue statute applied in this case.
The Missouri Constitution authorizes the Missouri Supreme Court to make procedural rules. State v. Reese, 920 S.W.2d 94, 95 (Mo. banc 1996). Article V, section 5 of the Missouri Constitution grants the Missouri Supreme Court the power to "establish rules relating to practice, procedure and pleading for all courts ... which shall have the force and effect of law." MO. CONST. Art. V, § 5. The Missouri Supreme Court may not, however, "change substantive rights, or ... the right of appeal." Id. "Supreme Court rules govern over contradictory statutes in procedural matters unless the General Assembly specifically annuls or amends the rules in a bill limited to that purpose." Reese, 920 S.W.2d at 95 (quoting Ostermueller v. Potter, 868 S.W.2d 110, 111 (Mo. banc 1993)).
The rules which permit change of venue are procedural. State v. Vertner, 779 S.W.2d 703, 707 (Mo.App.1989)(quoting State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423, 426 (Mo. banc 1978)). Because venue rules are procedural, they supersede contradictory statutes unless specifically annulled or amended by the legislature. Reese, 920 S.W.2d at 95.
The Cole County change of venue statute, section 545.473 provides:
Cole County, change of venue, procedure.-1. Notwithstanding Missouri supreme court rule 32.03, a defendant with a case filed in a county with department of corrections and human resources facilities with a total average yearly inmate population in excess of two thousand persons shall follow the procedure listed in subsections 2 through 5 of this section in order to obtain a change of venue for misdemeanors or felonies.
2. Upon written application of the defendant, a change of...
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