State v. Mullins

• Decision Date: 30 March 2004
• Docket Number: No. WD 61972.,WD 61972.
• Citation: 140 S.W.3d 64
• Parties: STATE of Missouri, Respondent, v. Phyllis MULLINS, Appellant.
• Court: Missouri Court of Appeals

140 S.W.3d 64

STATE of Missouri, Respondent, v. Phyllis MULLINS, Appellant.

No. WD 61972.

Missouri Court of Appeals, Western District.

March 30, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court, Jackson County, Jay A. Daugherty, J Patrick W. Peters, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Kaye Spillars, Breck Burgess, Office of Attorney General, Jefferson City, for Respondent.

PAUL M. SPINDEN, Judge.

The circuit court convicted Phyllis Mullins of second-degree felony murder of a three-month-old infant who was one of 18 children¹ that Mullins cared for in her Blue Springs home. It also convicted her of 19 counts of endangering the welfare of a child in connection with Mullins' endeavoring to care for 19 children by herself. Mullins charges the circuit court with six points of error, but she presents the points in a manner that violates Rule 84.04, forcing us to review her points only for plain error under Rule 30.20. The state concedes that insufficient evidence existed to support Mullins' conviction for endangering the welfare of one child, Corbin Eckler; hence, we reverse the circuit court's judgment as to the count relating to Eckler. We affirm the circuit court's judgment as to the remaining 18 counts of endangering the welfare of a child and the one count of felony murder in the second degree.

In considering Mullins' charges of error, we view the evidence in the light most favorable to the verdict, and we ignore countervailing evidence. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997).

On April 11, 2001, Mullins cared for 18 children in her house. Although she provided care for more than four children not related to her, Mullins did not have a license from the state authorizing her to be a childcare provider. On April 11, 2001, Mullins telephoned for emergency assistance when one of the children, three-month-old Jacob McGinnis, vomited, lost consciousness, and turned blue. Paramedics responding to Mullins' call took the infant to St. Mary's Hospital in Blue Springs where his pulmonary system stopped functioning. After physicians were able to get his heart beating again, they transferred him to Children's Mercy Hospital where he died that evening.

Jackson County's medical examiner ruled that a severe head injury inflicted in a homicide caused the child's death. The examiner concluded that an object had hit the back of the child's head with a "very, very forceful, very violent kind of injury to the head."

In her first point relied on, Mullins alleges that the circuit court "committed error in denying [her] motion to dismiss for violation of section 556.041 and on double jeopardy grounds." Rule 84.04(d)(1)² instructs that an appellant's brief must contain points relied on that "(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant's claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." The rule further instructs:

The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."³

Moreover, the rule admonishes, "Abstract statements of law, standing alone, do not comply with this rule." Rule 84.04(d)(4).

Mullins' point relied on does not comply with Rule 84.04(d)(1). Her point relied on identifies the circuit court's ruling — the denial of her motion to dismiss — and concisely provides the legal reasons for her claim of reversible error — violation of § 556.041, RSMo 2000, and on double jeopardy grounds, but it does not explain the "in that" portion — that is, why the legal reason supports her claim of reversible error. Her point is merely an abstract statement of the law.

"`Insufficient points relied on preserve nothing for this court to review.'" Hall v. Missouri Board of Probation and Parole, 10 S.W.3d 540, 544 (Mo.App.1999) (quoting Green v. Douglas, 977 S.W.2d 32, 33 (Mo.App.1998)); see also State v. Nenninger, 872 S.W.2d 589 (Mo.App.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 503 (1994). Because, however, we can discern Mullins' contention from the argument portion of her brief, we exercise our discretion to review her claim rather than dismiss her point. Great Southern Savings and Loan Association v. Wilburn, 887 S.W.2d 581, 583 (Mo. banc 1994), and State v. Schneider, 97 S.W.3d 494, 496 (Mo.App.2002). We review her allegation of error, however, for plain error only. Great Southern Savings, 887 S.W.2d at 583; Schneider, 97 S.W.3d at 496; and State v. Dowell, 25 S.W.3d 594, 605 (Mo.App.2000).

Rule 30.20 authorizes us to review, in our discretion, "plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Under Rule 30.20, plain error review involves a two-step process. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). First, we determine whether or not the claimed error "facially establishes substantial grounds for believing that `manifest injustice or miscarriage of justice has resulted.'" State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). We must determine "whether, on the face of the claim, plain error has, in fact, occurred." Dudley, 51 S.W.3d at 53. Errors are plain if they are evident, obvious, and clear. State v. Hawthorne, 74 S.W.3d 826, 829 (Mo.App.2002). In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20. If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step and consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Dudley, 51 S.W.3d at 53.

From the face of this record, we do not discern plain error. In the argument portion of her brief, Mullins claims that the circuit court erred in entering its judgment convicting her of 19 counts of endangering the welfare of a child in the first degree because it violated her right to be free from double jeopardy. She asserts that her watching 19 children at the same time was a continuing course of conduct that could support only one count of endangering the welfare of a child. In support of her contention, she argues:

[L]et us assume arguendo that a statute criminalized caring "for more than 10 children at a time." ... Under this scenario, caring for 10 children is lawful, but caring for 11 children is unlawful. Under the State's theory, when an adult begins supervising the 11th child, the 11th child subjects the adult to eleven separate criminal sanctions for all 11 children, even the 10 children who were lawfully cared for. This counting method violates the double jeopardy clause and Section 556.041 because the act is a continuing course of conduct.

We disagree.

"[T]he federal double jeopardy clause protects defendants not only from successive prosecutions for the same offense after either an acquittal or a conviction, but also from multiple punishments for the same offense." State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). It does not, however, "protect a defendant from punishment for more than one offense arising from the same set of facts if one has in law and fact committed separate crimes." State v. Murphy, 989 S.W.2d 637, 639 (Mo.App.1999).

Double jeopardy analysis regarding multiple punishments is limited to determining whether or not the General Assembly intended cumulative punishments. McTush, 827 S.W.2d at 186. We determine legislative intent regarding cumulative punishments by examining the statutes under which the defendant was convicted. State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo. banc 1992).⁴

"A person commits the crime of endangering the welfare of a child in the first degree if ... [t]he person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old." Section 568.045.1(1), RSMo 2000 (emphasis added). The statute makes clear that a person may be punished for each child who was endangered. The statute shows that a unit of prosecution exists for each child, rather than each group of children, who is endangered. See State v. Nichols, 865 S.W.2d 435, 437 (Mo.App.1993) (the word "a" in § 571.030, RSMo, is singular, and its use indicated that each knife that the defendant carried concealed upon his person was an allowable unit prosecution); State v. Bowles, 754 S.W.2d 902, 911 (Mo.App.1988) (a single act of assault by the defendant which affects two or more persons constitutes multiple offenses); and Murphy, 989 S.W.2d at 639-40 (double jeopardy did not result from four convictions for felonious restraint where the defendant restrained four different victims at the same time). Mullins' contention is without merit.

In her next point, Mullins asserts that the circuit court "committed error in failing to grant defendant's motion for a bill of particulars." This point relied on also does not provide the legal reason or explain why the legal reason supports her claim of reversible error. We, therefore, review her allegation of error for plain error only.

In the argument portion of her brief, Mullins claims that the circuit court should have granted her motion for a bill of particulars because she still does not know what acts she committed with the requisite mental state that resulted in her convictions. She complains about what she terms as inconsistency in the specificity, such as the dates,...