State v. Ponder, 21051
| Decision Date | 01 August 1997 |
| Docket Number | No. 21051,21051 |
| Citation | 950 S.W.2d 900 |
| Parties | STATE of Missouri, Respondent, v. Tony S. PONDER, Appellant. |
| Court | Missouri Court of Appeals |
Kerry G. Rowden, Tuscumbia, Timothy R. Cisar, Lake Ozark, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Christine M. Blegen, David S. Cosgrove, Asst. Attys. Gen., Jefferson City, for respondent.
Defendant, Tony S. Ponder, was tried by jury for murder in the second degree. § 565.021.1(1). 1 In addition to submitting that charge to the jury, the trial court gave the jury a verdict-directing instruction submitting involuntary manslaughter. § 565.024.1(1). The jury found Defendant guilty of involuntary manslaughter and assessed punishment at seven years' imprisonment. The trial court entered judgment per the verdict.
Defendant appeals. One of his eight points relied on avers the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence. In addressing that issue, we view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the verdict and disregard all evidence and inferences to the contrary. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995). Our review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found Defendant guilty beyond a reasonable doubt. Id.
The victim was Zachary Shelton. He was born January 1, 1992. He died September 20, 1994, as a result of injuries he sustained September 14, 1994.
Viewed favorably to the verdict, the evidence revealed that Zachary's mother, Rhonda Shelton, began cohabiting with Defendant in January, 1994. On September 13, 1994, they commenced moving from Dixon to the "Ruby Wilson farm" situated "at the western edge of Maries County."
The next day (September 14), while Rhonda was at work in Rolla, Zachary was at the home of his paternal grandparents, Marie and Edward Shelton. Around 2:05 p.m., Defendant arrived there in his pickup. He told Marie that Rhonda would be working late and she wanted him to pick up Zachary.
Marie told Zachary to go with Defendant. According to Marie, Zachary "didn't want to go." Marie's testimony:
"Q (by [Prosecutor] ) What did you observe, if anything, as far as Zachary's behavior which suggested to you that he did not want to go with the Defendant?
[Defendant's lawyer]: Objection.
[Prosecutor]: Nothing about what he said.
[Defendant's lawyer]: I object to the form of the question.
Q (by [Prosecutor] ) Okay. But nonetheless, Zach and Mr. Ponder left your house--is that correct?
A Correct.
Q All right. Did you ever see the Defendant again that day?
A Later that evening, around 5:50.
Q And tell the jury what happened around 5:50.
A He returned to my house around 5:50 that evening and he came to the door and said, "
Asked whether Defendant said he had thrown Zachary, Marie answered, "He said he had pulled him loose from the fence."
Marie went to Defendant's pickup. Zachary "was laying up in the passenger side." His eyes were partially open and "dry-looking." There were two marks on his right ear and a red mark "up in his hairline." He "went into a seizure and there was liquid running [out] of his mouth."
Marie ran back into the house and awoke Edward. She and he took Zachary to Phelps County Regional Hospital in Rolla, unaccompanied by Defendant.
Jay Crump, an emergency room physician, commenced treatment for Zachary. Zachary had stable vital signs but was unresponsive to stimuli and was in a coma. Crump found a bruise on Zachary's right forehead and was concerned that Zachary had a head injury.
Marie told Crump that Zachary "had gotten ahold of a cattle containment fence, had been fixed to the fence and had to be knocked off." Crump looked for injuries consistent with that explanation, but found none.
After the initial evaluation, Crump decided Zachary should be transferred to St. Louis Children's Hospital because no physician at the Rolla hospital was capable of treating Zachary for a significant central nervous system injury. By that time (around 8:30 p.m.) Rhonda had arrived at the Rolla hospital. She consented to the transfer.
Meanwhile, Defendant had returned to the Ruby Wilson farm. Around 6:00 or 6:30 p.m., Roy Carmack stopped there to ask Defendant whether he wanted to accompany him (Carmack) to a sale barn. Defendant told Carmack he was waiting on Rhonda because "Zach had gotten on the fence" and he (Defendant) had "pulled him off of it."
The fence to which Defendant referred had been installed in May, 1994, by William Hale. Hale testified that the owner of the farm allowed him to pasture cattle there. In return, Hale was responsible for upkeep.
The house on the farm (into which Defendant, Rhonda and Zachary were moving) was surrounded by a yard. Hale installed the fence to keep cattle out of the yard.
The fence consisted of a single wire connected to insulated posts. The wire was energized by a "fencer"--a box mounted on the wall of the house. The box "plugs into 110 current." The fence was a "pulsating" fence, i.e., the current went through the fence at intervals of "about every one and a third second." However, the current was "off longer than it's on." That is, the fence was energized "a fraction of the time and then off."
Hale avowed he had touched the fence while it was "plugged in" and had never suffered any injury. His hand never got stuck to it.
Edward Shelton (Zachary's grandfather) testified that upon leaving the Rolla hospital September 14 (inferably after Zachary departed for St. Louis), he (Edward) went home. Later that evening, he went to the Ruby Wilson farm because he "wanted to check that fence." Edward grasped it and "all [he] got was a tingle." He recounted, He had no difficulty getting loose from the fence.
Upon Zachary's arrival at St. Louis Children's Hospital, he was examined by Bruce Kaufman, a pediatric neurosurgeon. A computed tomography revealed swelling in the left hemisphere of the brain. One area of swelling was in the left parietal occipital region; another area of swelling was in the left frontal parietal region.
Zachary also had multiple bilateral retinal hemorrhages. The most common cause of retinal hemorrhage in children is shaking, but the condition can also result from direct trauma to the head. Additionally, Zachary had a small right front scalp contusion and bruising to the right ear and neck.
Kaufman testified that Zachary's injuries, in the aggregate, were inconsistent with being shaken two or three times and also inconsistent with "an eight foot toss into grass."
Rhonda went to St. Louis Children's Hospital to be with Zachary. Late that night (September 14) she talked with Defendant by phone. He told her Zachary "grabbed the fence and was screaming and he went and pulled him off of the fence." Defendant did not say he threw Zachary to the ground or that he (Defendant) shook Zachary.
The next morning, Rhonda again talked with Defendant by phone. She told him the doctors found no indication of shock and they said Zachary was shaken. Defendant replied he might have shaken Zachary because "when he pulled him off the fence, he was unconscious and that he might have shaken him."
That afternoon (September 15), deputy sheriff Doug DiNatale interviewed Defendant. After DiNatale advised Defendant of his Miranda rights, 2 Defendant told DiNatale he was working in the yard at the residence into which he, Rhonda and Zachary were moving. Defendant recounted he told Zachary to stay away from the fence. Despite the warning, Zachary got in contact with the fence. Defendant ran to Zachary and pushed him away from the fence. Zachary fell. While on the ground, Zachary was making noises. Defendant picked Zachary up, shook him once or twice in an effort to revive him, then drove him to the Shelton residence. Defendant did not say he threw Zachary.
After the interview, DiNatale did not arrest Defendant.
The next day (September 16), Defendant met DiNatale and other officers at the site where Zachary was injured. Defendant reenacted the incident; the reenactment was videotaped.
As reported in the third paragraph of this opinion, Zachary died September 20. The following day, an autopsy was performed by Philip Burch, Deputy Chief Medical Examiner for the City of St. Louis. Burch, a forensic pathologist, explained that his office examines all violent deaths where the deceased is pronounced dead in that city.
Zachary's body weighed 54 pounds. Burch saw no bruise on the forehead and none on the right ear. However, beneath the surface of the skin Burch found a contusion on the left side of the forehead and another contusion above and behind the left ear. He also found blood in the subdural space and subarachnoid hemorrhages on the surface of the brain. Burch observed "evidence of brain swelling and brain death."
Burch also discovered retinal hemorrhages, i.e., bleeding into the tissues of the eye away from blood vessels. Such hemorrhages can be caused by violent impact to the head or shaking.
Burch determined that the cause of Zachary's death was closed head blunt trauma. He explained, "That means that in some manner blunt trauma was transmitted to this child, specifically in the head area, and this blunt trauma was of such violent nature that it caused disruption of the brain function and ultimately in the child's death."
Prior to trial, Burch viewed the videotape of Defendant's reenactment of the incident. During Burch's testimony, this dialogue...
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