State v. Still

• Decision Date: 16 March 2007
• Docket Number: No. 27254.,27254.
• Citation: 216 S.W.3d 261
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Dustin R. STILL, Defendant-Appellant.
• Court: Missouri Court of Appeals

216 S.W.3d 261

STATE of Missouri, Plaintiff-Respondent, v. Dustin R. STILL, Defendant-Appellant.

No. 27254.

Missouri Court of Appeals, Southern District, Division Two.

March 16, 2007.

Nancy A. McKerrow, Columbia, MO, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for plaintiff-respondent.

JEFFREY W. BATES, Chief Judge.

Dustin R. Still (Defendant) was charged by amended information with two counts of committing the class C felony of abuse of a child by beating A.B. and N.B. See § 568.060.¹ A jury found Defendant guilty of each count, but no sentencing recommendations were made because Defendant was a prior and persistent offender. See § 557.036.4(2) RSMo Cum.Supp. (2004). The trial court sentenced Defendant to a term of 5 years imprisonment for each count and ordered the sentences to run concurrently.²

On appeal, Defendant presents two points for decision. First, he contends the trial court erred in overruling Defendant's motion for judgment of acquittal at the close of all of the evidence because there was insufficient proof that he knowingly inflicted cruel and inhuman punishment on A.B. and N.B. Second, Defendant contends the trial court committed plain error when it admitted testimony concerning prior uncharged misconduct by Defendant. We affirm.

Point I — Sufficiency of the Evidence

Defendant's first point challenges the sufficiency of the evidence to support his conviction. It is not our function to resolve conflicts in the evidence and decide the credibility of witnesses to determine whether the defendant is guilty beyond a reasonable doubt; in the case at bar, that role belonged to the jury. State v. Silvey, 980 S.W.2d 103, 106 (Mo.App.1998). Our review "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." State v. Simmons, 955 S.W.2d 752, 764-65 (Mo. banc 1997); see State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005).

Insofar as relevant here, a person commits the crime of child abuse if he "[k]nowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old[.]" § 568.060.1(1). In the amended information, Count I alleged that, on or about March 29, 2004, Defendant "knowingly inflicted cruel and inhuman punishment upon [A.B.], a child less than seventeen years old, by beating said child with a board and with his hand." Count II alleged that, on the same date, Defendant abused N.B. in the same manner as A.B. In deciding whether the evidence was sufficient to convict Defendant of child abuse, "the appellate court must consider 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. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). Viewed in that light, the following facts were adduced at trial.

In March 2004, Defendant lived with Cheena Tinsley (Tinsley) and three children. A.B., then almost four years old and N.B., then almost three years old, were Tinsley's children from a prior relationship. Heaven, who was 16 months old, was the daughter of Defendant and Tinsley. There was a paddle hanging on the wall of the kitchen in Tinsley's home. She had placed the paddle there as a wall decoration because she liked the humorous saying printed on it: "For managing monsters, controlling cowboys, and walloping wolves. Board of corrections may be used on any child from five to seventy five." Tinsley had never used the paddle to spank her sons and did not plan to do so because it would be too painful.

Tinsley worked at a McDonald's restaurant in Webb City, Missouri. She and Defendant had no car, so Tinsley rode to work with her sister, Tanya Denham (Denham). Before going to work, Tinsley and Denham would take all three children to a daycare center about 15 minutes away by car.

On Monday, March 29th, Tinsley was supposed to be at work by noon. Because Denham arrived late, Tinsley left the three children in Defendant's care. When Tinsley came home from work, she found a note from Defendant saying that the children were with Tracy Aston (Aston), Defendant's former girlfriend. Tinsely picked up the children from Aston's house and returned home. Later that night at bath time, Tinsley noticed that both of her sons' buttocks "were red, with like spots of blue." When Defendant arrived home, Tinsley confronted him about the bruises. Initially, Defendant said the boys "were rough housing and they had their toys all over the place and they could have fell on their toys." Later, he admitted spanking A.B. and N.B. once with his hand and said that he was sorry if he left bruises.

On Tuesday, March 30th, Tinsley did not take the boys to daycare. She was afraid the Children's Division would take her children away if the daycare provider, Beverly Lyn Brock (Brock), discovered the bruises and reported them. Tinsley told Defendant that he would have to watch the boys until the bruises were gone.

As it turned out, Defendant had a job interview on Wednesday, March 31st. Since he was not able to watch A.B. and N.B., Tinsley took the boys to daycare anyway. She told Brock that one of the boys had bruises on his bottom, but Tinsley had already taken care of the problem. Brock did not see any bruises on A.B. or N.B. that day because she did not have any occasion to help them in the bathroom or change their clothes.

On Thursday, April 1st, Brock was helping A.B. in the bathroom when she saw bruising on his buttocks. The bruises were so severe that Brock almost "threw up." She then checked N.B. and observed similar bruising on his buttocks. Brock was not able to reach a live operator on the Children's Division hotline, so she called the Joplin Police Department. Detective Michael Gaymon (Detective Gaymon) and a Children's Division investigator, Nova Probst (Probst), went to McDonald's and told Tinsley that she needed to pick up A.B. and N.B. immediately and take them to the Children's Center. Once there, the children were examined by Probst and nurse practitioner Leigh Rodriguez (Rodriguez). They found severe bruising on the boys' buttocks caused by a linear object. One of the boys also had a mark from a hand on his buttocks. The bruises were consistent with physical abuse. The injuries on the boys' buttocks were measured and photographed. The dimensions of the bruises were consistent with a decorated paddle Probst later found hanging on the wall of Tinsley's kitchen.³

Defendant was interviewed by Detective Gaymon on Thursday afternoon. Defendant said that he had been babysitting A.B., N.B. and Heaven that day. While Heaven was asleep on the couch, the boys were fighting in their room. According to Defendant, A.B. was throwing things at N.B., so Defendant picked up a decorated paddle hanging on the kitchen wall and "busted both their butts." The boys continued to misbehave, so Defendant went in their room two more times to hit them with the paddle. Defendant told Detective Gaymon that he hit the boys a total of four or five times with the paddle on the three separate occasions and that he hit them once with his hand. Defendant admitted that "he had spanked [A.B. and N.B.] too hard with the paddle and with his hands." Defendant admitted this was wrong and he should not have done it. Defendant knew that the bruises on the boys' buttocks had been caused by spanking them too hard and that he probably hit the boys hard enough to leave board prints and fingerprints on their buttocks.

At the close of all of the evidence, Defendant filed a motion for judgment of acquittal. The trial court denied the motion. On appeal, Defendant contends this ruling was erroneous because the evidence was insufficient to support the jury's finding that: (1) Defendant inflicted cruel and inhuman punishment; and that (2) he did so knowingly.⁴ Neither contention has merit.

In the case at bar, Defendant admitted that he hit A.B. and N.B. once with his hand and four or five times with a paddle. Tinsley had never spanked her sons with that paddle because it would hurt them too much. Defendant further admitted that he had spanked the boys "too hard" and that he should not have done it because it was wrong.⁵ At that time, A.B. was under four years of age and N.B. was under three years of age. The beating administered by Defendant left a hand print on one boy, as well as paddle prints and visible bruises on both boys. When daycare provider Brock saw A.B.'s bruise, she nearly "threw up." That same day, Probst and Rodriguez observed and photographed severe bruising on each boy. These photographs, which were introduced in evidence, show that A.B. had a very visible bruise approximately five inches by four inches on his buttocks. N.B. had a very visible bruise approximately four inches by three inches on his buttocks. Based upon this evidence, a reasonable juror could have found beyond a reasonable doubt that Defendant inflicted cruel and inhuman punishment on A.B. and N.B. See State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990); State v. Lauer, 955 S.W.2d 23, 26 (Mo.App.1997); State v. Silvey, 980 S.W.2d 103, 106 (Mo.App.1998).

In Sumowski, the defendant disciplined his six-year-old stepson by slapping the child several times. These blows caused bruises on the child's face and neck which were still visible two days later. Sumowski, 794 S.W.2d at 645-46. After Defendant was convicted of abuse of a child in violation of § 568.060 RSMo (1986), he challenged the sufficiency of the evidence to sustain his conviction. Our Supreme Court affirmed the defendant's conviction because "[t]he direct and circumstantial evidence that defendant struck [the child] in the face with sufficient force to cause bruises which would be visible two days later" was sufficient to prove that he knowingly inflicted cruel and inhuman punishment on a...