State v. Mahurin

• Decision Date: 20 November 1990
• Docket Number: Nos. 72754,72755,s. 72754
• Citation: 799 S.W.2d 840
• Parties: STATE of Missouri, Respondent, v. Bertha MAHURIN, Appellant. STATE of Missouri, Respondent, v. William S. MAHURIN, Appellant.
• Court: Missouri Supreme Court

Page 840

799 S.W.2d 840

STATE of Missouri, Respondent, v. Bertha MAHURIN, Appellant.

STATE of Missouri, Respondent, v. William S. MAHURIN, Appellant.

Nos. 72754, 72755.

Supreme Court of Missouri En Banc.

Nov. 20, 1990.

Rehearing Denied Dec. 18, 1990.

David S. Durbin, Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Bertha and William Mahurin, husband and wife, were convicted by a jury of endangering the welfare of their son, Patrick, and of the involuntary manslaughter of his twin brother, Joseph. The jury assessed punishment against William at nine months' imprisonment in the county jail for endangering the welfare of a child, and four years' imprisonment for involuntary manslaughter; and against Bertha at one year in jail and an unspecified fine for child endangerment, and seven years' imprisonment for the manslaughter. The judge, in imposing sentences, ordered the imprisonments to run concurrently and imposed no monetary fine on Bertha. Judgments were entered accordingly. Their appeals were transferred by the Court of Appeals, Western District, prior to opinion because of challenges to the validity of the child endangerment statute. The judgments are affirmed.

On March 27, 1988, police were dispatched to a home on Beacon Street in Kansas City. Upon arriving, they learned that paramedics had discovered a nonbreathing baby (Joseph Mahurin) and were transporting him to the hospital. Inside the home, police found filth, dirty diapers and debris, along with two small children and an infant. The infant, Joseph's two-month-old twin brother, Patrick Mahurin, lay on a bed next to two bottles, one of which contained curdled formula. Patrick was unresponsive to the officers and stared into space. When Joseph Mahurin arrived at the hospital emergency room, attempts to resuscitate him were unsuccessful. An autopsy showed that Joseph was extremely emaciated, having lost all of his body fat; his eyes were sunken; he was dehydrated and had suffered bronchial pneumonia caused by his malnourished condition. A doctor who later examined Patrick stated that he had lost his fat reserves; he was "skin and bones." Evidence at trial showed Patrick was suffering from starvation and that Joseph had died of malnutrition. The Mahurins had been given instructions on infant care upon Bertha's discharge from the hospital after the twins' birth, and Bertha was supervised by a Division of Family Services social worker in connection with her children's care.

I.

Appellants contend the trial court erred in overruling their motion to declare section 568.050.1(1) unconstitutional. They assert the statute is unconstitutional on its face because it is so vague that it fails to give fair notice of the conduct it proscribes; that reasonable persons could differ on whether particular conduct created a "substantial risk" to the well-being of a child; and as applied, the charge of failure to provide adequate nutrition is too indefinite to constitute a violation of the child endangerment law.

A valid statute must give a person of ordinary intelligence a reasonable opportunity to learn what is prohibited. It must provide explicit standards against arbitrary and discriminatory application. Statutes are presumed to be constitutional and will be found unconstitutional only if they clearly violate a constitutional provision, State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983); any doubt is to be resolved in favor of the law's validity. State v. Young, 695 S.W.2d 882, 883 (Mo. banc 1985).

The words "substantial risk" have a plain and ordinary meaning cognizable by a person of ordinary intelligence. "If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty." Brown, 660 S.W.2d at 697. Because a defendant's knowledge of the consequences of his or her actions must be proven, the possibility of arbitrary convictions is negated. See State v. Dale, 775 S.W.2d 126, 131 (Mo. banc 1989) (statute prohibiting neglect of nursing home residents held not unconstitutionally vague). The statute is not unconstitutional as applied to appellants. Starvation results from deprivation of food, and failure to provide nutritional care necessary for a child's well-being is evident. Appellants also assert that the statute is overbroad. Such a claim is not appropriate in this case because there is no First Amendment issue. State v. Munson, 714 S.W.2d 515, 522 n. 7 (Mo. banc 1986).

II.

Appellants contend the trial court erred in overruling their motion for severance. Bertha Mahurin argues that severance should have been granted because the facts involved were such that the jury would have difficulty "compartmentalizing" the evidence in that: the codefendant testified while she did not; she desired to waive the jury while he did not; and evidence admissible primarily against William Mahurin was not admissible against her. William Mahurin joins many of the same arguments to assert that severance was necessary because his codefendant waived jury assessment and he was subject to jury assessment.

Rule 24.06 requires the court to try defendants together unless one defendant files a written motion for severance and the court finds the probability of prejudice exists, or:

(1) The defendant is subject to assessment of punishment by the jury and the defendant shows a probability of prejudice would result from this fact if he is not tried separately; or

(2) There is, or may reasonably be expected to be, material and substantial evidence not admissible against the defendant that would be admissible against other defendants if a separate trial is not ordered; or

(3) There is an out-of-court statement that is not admissible against the defendant that would be admissible against other defendants if a separate trial is not ordered unless the court finds the out-of-court statement can be limited by eliminating any reference to the defendant; or

(4) A separate trial is necessary to a fair determination of whether the defendant is guilty.

Defendant Bertha Mahurin had no right to a bench trial. State v. Goree, 762 S.W.2d 20, 22 (Mo. banc 1988), and she has failed to show that prejudice arose from the method of sentencing employed at trial. The transcript demonstrates that statements allegedly admissible against Bertha Mahurin and not against William Mahurin were nearly identical to statements made by William Mahurin. Several qualify as tacit admissions such that they would have been admissible against a codefendant at a separate trial. Appellants have failed to demonstrate that prejudice arose that required severance under Rule 24.06. As such, the decision to grant a motion to sever is a matter within the trial court's discretion. Cf. State v. Dale, 775 S.W.2d 126, 132 (Mo. banc 1989).

Appellants contend the trial court erred in overruling their motions to quash the indictment, or in the alternative for sanctions. They assert the State failed to respond properly to Bertha Mahurin's Motion for a Bill of Particulars in that the State never identified the specific statutory legal duty that made their omissions to act a violation of the child endangerment statute. They also assert that the indictment was defective in that it did not cite a particular duty to the child imposed by law. The indictment charged that the couple had failed to provide the victim, Patrick, with nutritional and medical care necessary for his well-being. Appellants argue that the child endangerment statute prohibits only affirmative acts, and that sections 556.026 and 562.011 support their argument that an omission cannot be deemed criminal unless specifically proscribed by statute.

Under section 568.050, one is guilty of child endangerment if he or she "knowingly acts in a manner that creates a substantial risk to the life, body or health of a child...." The specific omissions charged to the defendants were stated in the State's Response to the Bill of Particulars. To withhold food and medical care is to act in a manner that puts a child at risk. Failure to provide medical treatment for a child violates this statute, State v. Dailey, 755 S.W.2d 348 (Mo.App.1988); failure to provide necessary care for a child's well-being constitutes neglect, § 210.110, RSMo.

Appellants contend the trial court erred in admitting records of a juvenile court proceeding. They argue the provision in section 211.271(3) that "all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding ..." constitutes an absolute prohibition on the use of juvenile records for any purpose, against anyone. The quoted language shows the statute applies only to use of a child's statements against the child. Smith v. Harold's Supermarket, Inc., 685 S.W.2d 859, 863 (Mo.App.1984). Bertha's statements in records that were part of an investigation that resulted in the removal of her children from her home were used against her. This use does not fall within the ambit of the statute's prohibition and its intended protection to a child. Appellants' attempt to distinguish Smith fails because although the issues in Smith differ from the questions here, the statutory construction remains the same.

Appellants contend the trial court erred in overruling their objection to a comment in closing argument that they claim is a direct comment on Bertha's failure to testify. The trial court has wide discretion in controlling closing argument; counsel has latitude in summaries. State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1984). Absent abuse of discretion resulting in prejudice to the defendant, trial court rulings on such issues should not...