State v. Silvey, s. 20707
| Decision Date | 14 October 1998 |
| Docket Number | Nos. 20707,22025,s. 20707 |
| Citation | 980 S.W.2d 103 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jason C. SILVEY, Defendant-Appellant. Jason C. SILVEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
David Simpson, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.
A jury convicted Jason C. Silvey ("Defendant") of two counts of abuse of a child, a class C felony, under § 568.060.1(1), RSMo 1994, 1 for knowingly inflicting cruel and inhuman punishment on each of his two stepsons. The jury recommended a sentence of three years in prison for each violation. The trial court ordered that the recommended sentences be served consecutively. In No. 20707, Defendant appeals from the judgment of conviction and sentence claiming there was insufficient evidence to establish that he inflicted "cruel and inhuman punishment" on the victims. We affirm in No. 20707.
After sentencing, Defendant sought post-conviction relief under Rule 29.15. In No. 22025 he appeals the denial of that motion. However, Defendant's brief contains neither a point relied on nor an argument charging that the motion court erred. Accordingly, we dismiss his appeal in No. 22025. 2
In March 1993, Defendant lived with his wife and her two sons, James and Jesse Floyd, near Lebanon, Missouri. At the time, James was in the second grade and Jesse was in the fourth grade. On March 10, 1993, a teacher's observation of bruises on James's arm led to James being interviewed by a school counselor. When the counselor asked, James answered, "My dad," apparently referring to Defendant, his stepfather. Thereon, the counselor contacted the Missouri Division of Family Services ("DFS") to report her suspicion that James had been abused by his stepfather.
Responding to the counselor's report, an investigator for DFS, and a deputy sheriff met with James at his school. During the meeting, these investigators saw a number of severe bruises on James's arms, face, back, and buttocks. Later in the day, they also met with Jesse and found that he had multiple bruises on his arms and buttocks. After both victims were photographed and further questioned, the deputy sheriff drove to Defendant's residence and arrested him.
On March 11, 1993, Dr. Jolene Ostwinkle examined both boys. During her examination of James, she observed numerous bruises on his arms, chin, back, buttocks, scrotum, thighs, and left knee. Based on their coloration, Dr. Ostwinkle believed the bruises varied somewhat in age, ranging from within three days to twelve or fourteen days old. In her examination notes, Dr. Ostwinkle described the bruising on James's buttocks as follows: When she examined Jesse, Dr. Ostwinkle noted bruises on his chin, mandible, shoulder, ribs, arms, abdomen, buttocks, and thighs. With regard to the bruising on Jesse's buttocks, Dr. Ostwinkle's examination notes stated: "Buttocks, purple, extensive .... petechial hemorrhages." In both her examination notes and testimony, Dr. Ostwinkle concluded that the bruising she had observed on both James and Jesse was "consistent with child abuse."
At the time of trial, James Floyd was in fifth grade. He testified that he had been taken away from his family because "[m]y stepfather beat me." When asked how his stepfather had beaten him, James stated, "He made this big, long paddle and hit my bare bottom with it." Using his hands, James indicated that the paddle was approximately three feet long and one inch thick, and he stated that "it had holes in it, all over it." James stated that Defendant had "spanked" him "[a]s hard as he could" with the paddle. Although James could not remember the exact day of the spanking that had caused his bruising, he did recall receiving the spanking sometime before he was taken away from his family on March 10, 1993. He also remembered that on the day he was taken away, someone had taken pictures of bruises on his body, and he stated that the bruises had been "real dark red and black." James did not know why Defendant had spanked him. When asked how many times Defendant would swat him with the paddle when Defendant spanked him, James replied, "Like 40 times a day."
Jesse Floyd was in seventh grade at the time of trial. His testimony corroborated James's in most respects. Jesse remembered being taken to James's school and being questioned about both his and James's bruises on the day he and James had been "taken away." He also recalled that someone had photographed his bruises, and he indicated that he was shown the pictures of James's bruises as well. Jesse testified that Defendant had caused James's bruises by spanking James with a paddle. Jesse estimated that Defendant's paddle was one inch thick and four inches wide, and he stated that "it had holes drilled in it and had tape around a knot on it where [Defendant] said he didn't want it to break."
Jesse testified that Defendant had paddled James the night before the two boys were taken away. Jesse stated that Defendant "pulled [James's] pants down and leaned up against the couch and paddled him." When asked to describe Defendant's "swats," Jesse replied, "Ball bat swing." He said that Defendant hit James "many" times, although he did not know exactly how many. He also stated that during the spanking, James was "[s]quirming around, screaming and yelling, trying to move and trying to ask [Defendant] why, why he was getting spanked." Jesse testified that he did not know why Defendant had spanked James. Jesse also indicated that James had received the bruises to his arms when he tried "to protect himself from the paddle."
Jesse further testified that the bruises he carried on March 10 had been caused by Defendant, who had spanked him approximately three nights before. Defendant had made Jesse bend over and then hit him approximately fifteen times with the paddle described above. According to Jesse, Defendant took "[b]all bat swings" and hit him "[o]n the rear end and a little bit on the back and a little bit on the legs." Jesse did not know why Defendant had spanked him. The spanking left Jesse with "[b]ig black and purple bruises" on his buttocks.
Defendant testified on his own behalf and denied ever having used a wooden paddle to spank James and Jesse. He stated that he had punished the two boys by other means, including occasionally swatting them with his hand three to five times. Defendant also testified that, to his knowledge, he was the only person to have spanked either of the boys between January and March 1993. He denied having any knowledge of the existence or cause of the bruises on the boys.
Based on this and other evidence, the jury convicted Defendant of two counts of abuse of a child, § 568.060, for knowingly inflicting cruel and inhuman punishment on James and Jesse Floyd by excessively paddling both boys.
Defendant's single point relied on in No. 20707 challenges the sufficiency of the evidence to support his conviction. In reviewing the sufficiency of the evidence to support a criminal conviction, we do not weigh the evidence but accept as true all evidence tending to prove guilt along with all reasonable inferences that support the decision of the jury. State v. Simmons, 955 S.W.2d 752, 764 (Mo.banc 1997) cert. denied, --- U.S. ----, 118 S.Ct. 1081, 140 L.Ed.2d 139 (1998). We ignore all contrary evidence and inferences. Id. Moreover, our "[r]eview 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." Id. at 764-765.
We note that witness testimony comprised the majority of the evidence adduced at trial. Resolutions of conflicts in evidence and deciding witness credibility to determine if the defendant is guilty beyond a reasonable doubt is the role of the jury and not the function of the reviewing court. State v. Gaver, 944 S.W.2d 273, 277 (Mo.App.1997).
The crime of abuse of a child is defined in § 568.060.1(1) as follows:
Defendant's only point relied on has two prongs. Specifically, Defendant argues that the trial court erred in denying his motion for acquittal at the close of evidence "because the evidence was insufficient to prove that [Defendant] inflicted 'cruel and inhuman punishment' on James or Jesse ... in that (1) paddling a child's bottom with a wooden paddle may not be 'cruel and inhuman'; and in that (2) there was no evidence that the paddling was part of any 'punishment.' "
In arguing the first prong of his point, Defendant insists that it is unclear whether his conduct, as demonstrated by the evidence in this case, is prohibited by § 568.060.1(1). In his argument, Defendant states:
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