State v. West, ED 104541

• Decision Date: 24 April 2018
• Docket Number: No. ED 104541,ED 104541
• Parties: STATE of Missouri, Respondent, v. Lisa M. WEST, Defendant/Appellant.
• Court: Missouri Court of Appeals

551 S.W.3d 506

STATE of Missouri, Respondent,

v.Lisa M. WEST, Defendant/Appellant.

No. ED 104541

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: April 24, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2018.

Application for Transfer to Supreme Court Denied August 21, 2018

ATTORNEY FOR APPELLANT: Mark Charles Prugh, 328 Historic RT 66 E, Waynesville, MO 65583.

ATTORNEY FOR RESPONDENT: Garrick F. D Aplin, P.O. Box 899, 221 West High Street, Jefferson City, MO 65102.

OPINION

Honorable Mary K. Hoff

Lisa M. West (Defendant) appeals from the judgment upon her conviction following a jury trial for involuntary manslaughter in the first degree, in violation of Section 565.024, RSMo 2000.¹ The trial court sentenced Defendant to five-years' imprisonment. We affirm.

Factual and Procedural Background

Defendant was charged by substitute information in lieu of indictment with involuntary manslaughter in the first degree, by recklessly causing the death of Victim by striking his head, or by striking his head against an object, or by shaking him, or by a combination thereof. Defendant challenges the sufficiency of the evidence to support her conviction. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial:

At approximately 8 a.m. on the morning of September 8, 2009, Victim’s mother dropped off Victim, who was 18 months old, at Defendant’s house for daycare supervision. Defendant’s two youngest children, who were two and four years old, were also present in the house. Between 8:05 and 8:10 a.m., Victim’s mother left for work and Victim was in a high chair eating. Before Victim’s mother left, Victim seemed happy. Victim’s mother testified that prior to that day, Victim’s health was "good" with no problems. She also testified that Victim did not have any bruises anywhere on his head when she dropped him off at Defendant’s house on the date of the incident.

At 8:16 a.m., Victim’s mother received a phone call from Defendant, who seemed frantic and hysterical. Defendant told Victim’s mother that Victim had fallen down the stairs; Defendant asked whether she should call 911. When asked what had happened, Defendant told Victim’s mother that she went downstairs into the basement to turn on the light, Victim followed her, and Victim fell and hit his head on the corner of the wall. When asked how Victim was doing, Defendant told Victim’s mother that Victim was not opening his eyes, he was moaning a little bit, and he was breathing "funny." Victim’s mother told Defendant to call 911. Victim’s mother testified that Defendant never mentioned Victim’s presence on the stairs or that Victim had hit his head on the floor.

At 8:21 a.m., Officer Spencer Grarup ("Officer Grarup") arrived at Defendant’s house to assist with the medical call. Officer Grarup testified that he observed Victim lying on the floor of the living room, unresponsive. Officer Grarup also testified that Victim had a pulse, but he had abnormal breathing and dilated eyes, which caused the officer to suspect a head injury. Officer Grarup testified that he did not observe any outward injuries to Victim’s body. Officer Grarup observed that there were 12 carpeted stairs leading down to the basement of Defendant’s house.

Officer Grarup also testified that later that day Defendant recounted a different version of the incident. Defendant told Officer Grarup that after feeding the children breakfast, she left the children upstairs in the living room area while she went to the basement. While Defendant was using the bathroom in the basement, she stated that she heard "a series of loud thuds followed by a loud bang." When Defendant came out of the bathroom, she found Victim lying at the bottom of the stairs and crying. Defendant stated that she then picked Victim up and carried him upstairs to the living room, where he began to breathe abnormally.

Officer Grarup and Detective Donnie Hovis ("Detective Hovis"), who was later involved in investigating the incident, both testified that they examined the walls enclosing the stairway and found no dents, scuffs or anything consistent with a child having hit his head on the wall. Additionally, no blood, other bodily fluids, or hair were observed on the stairs.

At approximately 8:24 a.m., Captain David Dalton ("Captain Dalton") and Monica Foeller ("Ms. Foeller"), paramedics with the St. Charles County Ambulance District, arrived at Defendant’s home. The paramedics found Victim lying on his back, flaccid, unresponsive to verbal or painful stimuli, breathing "slightly fast" and irregularly, with an irregular heartbeat and dilated pupils in both eyes that were unresponsive to light. Victim’s symptoms were consistent with traumatic brain injury and significant pressure on his brain, which are usually seen in victims of high speed motor vehicle accidents. Victim’s body did not have any outward signs of trauma, including any injuries—such as bruises, red marks, carpet burns, etc.—typically seen on children who had fallen down the stairs.

Captain Dalton testified that Defendant told him that she had noticed Victim falling down the stairs and that she had gone down the stairs to pick him up and bring him up to the living room. When Ms. Foeller asked Defendant if the stairs were hard or soft, Defendant told her that they were "hard stairs." In the 911 tape played before the jury, Defendant stated that Victim tripped on his sandal.

Samantha Tackaberry ("Ms. Tackaberry"), whose child had also been supervised in Defendant’s home in the past, testified that Defendant had recounted to her that she had "cracked the door to the basement" as she was getting ready to take the kids downstairs, that she started feeling nauseous, that she heard Victim screaming and crying when she came out of the bathroom, and that she then ran down to the bottom of the stairs. Ms. Tackaberry testified that Defendant stated to her that at this point, she picked up Victim who became unresponsive.

At trial, Defendant testified that shortly after Victim’s mother left on the morning of the incident, Defendant took Victim out of the high chair when he was done eating and put him by the aquarium. Defendant testified that she went downstairs to turn on the lights, went to use the restroom because she was feeling nauseated, heard "a noise," heard the baby crying, ran out, and found Victim at the bottom of the landing with his head against the wall. Defendant testified that her son "was a couple steps up from" Victim. Defendant testified that she picked Victim up and brought him upstairs, called Victim’s mother, and then called 911.

Defendant denied physically harming Victim but admitted that Victim was in her care when he got hurt.

After Victim arrived at Cardinal Glennon Children’s Hospital, Dr. Ann DiMaio² ("Dr. DiMaio"), an attending physician in the pediatric emergency department and member of the child protection team at the hospital, testified that she examined Victim in the emergency room. Dr. DiMaio testified that she observed Victim was intubated and not breathing on his own, he was unresponsive, his pupils were dilated and unresponsive to light, his heart rate was irregular, and he was exhibiting very abnormal posturing or spontaneous neurological movements. Dr. DiMaio also testified that she observed a small, dime-sized bruise on Victim’s "right forehead." While she observed no other bruises at that time, Dr. DiMaio testified that bruises sometimes take some time to develop.

Dr. DiMaio testified that thereafter Victim underwent an emergency CT, which showed a "huge subdural hematoma" and evidence that his "brain was shifted." Victim underwent emergency surgery, during which the subdural hematoma was removed to control the swelling. Victim was subsequently declared "brain dead." After surgery, Victim developed a swollen, black and blue bruise around his right eye, which later was determined to be "massive retinal hemorrhages."

Dr. DiMaio testified that in her many years of experience she had commonly seen children in the emergency room who had fallen down stairs. She testified that the "majority of injuries of children who fall down stairs are minor [such as] bumps or lumps, ... some cuts, abrasions, bruises," and that no child in her experience had died as the result of falling down stairs. Dr. DiMaio testified that she had never seen a fatal subdural hematoma in a child who had fallen down the stairs under their own power and that the only reasonable explanation for Victim’s injury was abusive head trauma. Dr. DiMaio also testified that Victim’s retinal hemorrhages were consistent with abusive head trauma and would have been "immediately incapacitating." Dr. DiMaio concluded that Victim’s death was caused by abusive head trauma.

Dr. Kamal Sabharwal ("Dr. Sabharwal") also testified on behalf of the State. Dr. Sabharwal, a medical examiner for multiple counties in the St. Louis area, is board certified in anatomic pathology and forensic pathology and testified that he performed Victim’s autopsy. Dr. Sabharwal testified that during Victim’s autopsy he observed a "faint light blue contusion or bruise" "just lateral—or to the side of the right eyebrow," and a small bruise just above that. Dr. Sabharwal also testified that Victim’s right eyelids contained areas of bleeding beneath the surface of the skin. Dr. Sabharwal testified that he did not believe the eye injury was the result of surgery, but had instead become visible after the surgery. Dr. Sabharwal also observed that Victim’s brain was swollen, there was a subdural hematoma on the right side of the brain, there was a subarachnoid hemorrhage, retinal hemorrhages, and optic nerve sheath hemorrhage of the type caused by an inflicted traumatic injury. Dr. Sabharwal did not observe any injuries consistent with Victim falling down the stairs. Instead, he believed Victim’s death was a homicide resulting from an inflicted head trauma and blunt impact to the eye. Dr....