State v. Usnick
| Decision Date | 18 June 2019 |
| Docket Number | WD 81263 |
| Citation | 585 S.W.3d 298 |
| Parties | STATE of Missouri, Respondent, v. Emily USNICK, Appellant. |
| Court | Missouri Court of Appeals |
Sharon Kennedy and Phillip Zeeck, Kansas City, MO, for appellant.
Gregory L. Barnes, Jefferson City, MO, for respondent.
Before Division Two: Cynthia L. Martin, Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge
Emily Usnick ("Usnick") was convicted of first degree involuntary manslaughter following a jury trial in the Circuit Court of Johnson County. The jury found that Usnick was responsible for the death of her newborn daughter ("Baby Usnick") during an at-home, medically unattended birth. As charged, the State contended that Usnick recklessly caused the death of Baby Usnick "by giving birth to said child unattended and failing to secure assistance and medical attention for said child following birth and by enclosing said child in a plastic bag and container." The court sentenced Usnick to five years in the Department of Corrections. Usnick brings seven allegations of error on appeal. Because the State's evidence did not establish a corpus delicti as to any of the bases on which Usnick was charged, we are required to reverse her conviction of first degree involuntary manslaughter as a matter of law.
Usnick was an unmarried mother of three when she became pregnant in 2008. Two months before Baby Usnick was born, Usnick and her son moved into her uncle's home in the city of St. Elizabeth in Miller County. Usnick's uncle shared the home with five other people as well as others who stayed temporarily. Usnick had little interaction with the other occupants of the house; none knew that she was pregnant. Usnick did not have a working car or a job.
Usnick testified that she planned to give birth in a hospital and put the baby up for adoption through the hospital because she knew she could not care for another child. On January 15, 2009, Usnick went into labor while home alone. In a July 6, 2009 written statement to detectives ("Statement"), Usnick admitted smoking methamphetamine and marijuana the night before the birth. In her Statement she described Baby Usnick's birth as follows:
This Statement was consistent with Usnick's trial testimony except that at trial she testified that she removed the baby from the toilet before she passed her placenta. At trial, Usnick testified that, immediately following the delivery, the baby was not moving, breathing, or crying, and she did not feel or see any signs of life. Usnick described the baby as "pink and a little blue ... just silent and still." She believed Baby Usnick was "gone." Usnick placed the baby on a waste basket next to the toilet. After delivering the placenta, Usnick testified that she was unable to stand for several minutes. When she was able to move, Usnick placed the placenta in the waste basket with Baby Usnick and went to her room to get dressed. She then returned to the bathroom and placed the body in a plastic bag and placed the bag inside a tote and placed the tote in the trunk of her inoperable car. At that time she did not tell anyone that she had given birth or that the baby was dead. At the beginning of February, a former boyfriend, whom she had previously told that she was pregnant and he was the father, asked about the baby. She told him that she had given the baby to a cousin in Mexico, Missouri to adopt. He pointed out that he had not signed away his parental rights and wanted to see his child.
On February 3, 2009, while serving a search warrant in an unrelated methamphetamine investigation, police discovered the body of Baby Usnick in the trunk of the car. Usnick initially denied having been pregnant or giving birth.
In explaining why she did not seek medical attention, Usnick testified that her car was broken down, that she did not have minutes on her cell phone to call for help and, even if her cell phone had been available, there was inconsistent cell service at that house. She also testified that she was shaky from the delivery and it would have taken her between three to five minutes to reach a neighbor's house. The State was able to show that she sent several text messages using her cell phone until 7:57 p.m. on January 15, 2009, the day of the birth. Usnick also testified that the nearest emergency services were approximately 20 minutes from her location. There was, however, an ambulance substation located approximately 3/4 a mile away.
Usnick was charged by Information with second degree murder.2 The State contended in the Information that Usnick recklessly caused the death of Baby Usnick "by giving birth to said child unattended and failing to secure assistance and medical attention for said child following birth and by enclosing said child in a plastic bag and container." The Information did not charge Usnick with drowning Baby Usnick.
At trial, the State presented the testimony of three physicians regarding Baby Usnick's death. Dr. Carl Stacy ("Dr. Stacy") performed the autopsy on Baby Usnick. Dr. Douglas Miller ("Dr. Miller") performed an analysis of Baby Usnick's brain as part of the autopsy. Dr. Christopher Long ("Dr. Long") conducted the toxicology portion of Baby Usnick's autopsy.
The State's theory as to the cause of death was "hypoxia
." Hypoxia is a general term referring to a deficiency in oxygen. The specific cause of the hypoxia is uncertain. Dr. Stacy testified that based on the clotting of the placenta it is unlikely that there was a placental abruption that deprived Baby Usnick of oxygen prior to birth. Dr. Stacy also testified that Baby Usnick could have died from having the umbilical cord wrapped around her neck--a condition called nuchal cord--which occurs naturally. Baby Usnick was found by police with her umbilical cord wrapped around her neck. Dr. Stacy also found subgaleal hemorrhages inside Baby Usnick's scalp, which is an occurrence consistent with a vaginal delivery and supports a finding that the baby's heart was beating during the time the baby passed through the uterine canal. Due to decomposition and other factors it was not possible to medically determine if Baby Usnick had drowned in the toilet. It was Dr. Stacy's opinion that the baby died during delivery or shortly after delivery. Dr. Stacy opined that had the baby been born in a hospital or in the presence of someone with medical training the baby could have been resuscitated.
Dr. Long conducted the toxicology portion of Baby Usnick's autopsy. Dr. Long testified that there was methamphetamine in Baby Usnick's internal organs which established that the baby was alive in utero when the methamphetamine was introduced because the baby's heart had to be beating for the drugs to transfer from the mother into the tissues of the baby.
Dr. Miller testified that he found nothing in his examination of Baby Usnick's brain which would have contributed to the cause of death. There were no hypoxic changes to her brain cells from which he concluded she was not deprived of oxygen or blood supply while she was alive for a long enough period of time to cause those types of changes to occur.
At the close of the State's evidence and at the close of all evidence Usnick moved for a judgment of acquittal based, in part, on the State's failure to demonstrate how Baby Usnick died.3 The motions for judgment of acquittal were overruled and the case was submitted to the jury. The court instructed the jury on second degree murder and the lesser included offense of first degree involuntary manslaughter. The jury ultimately found Usnick...
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