State v. Wilson

• Decision Date: 23 April 1996
• Docket Number: No. WD,WD
• Citation: 920 S.W.2d 177
• Parties: STATE of Missouri, Respondent, v. Melissa WILSON, Appellant. 50689.
• Court: Missouri Court of Appeals

Page 177

920 S.W.2d 177

STATE of Missouri, Respondent, v. Melissa WILSON, Appellant.

No. WD 50689.

Missouri Court of Appeals,

Western District.

April 23, 1996.

Appeal from the Circuit Court of Randolph County; The Honorable Channing D. Blaeuer, Judge.

Rose M. Wibbenmeyer, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Karen C. Nelson, Assistant Attorney General, Jefferson City, for respondent.

Before ULRICH, P.J., and BRECKENRIDGE and SMITH, JJ.

BRECKENRIDGE, Judge.

Melissa Wilson appeals her conviction of the class D felony of endangering the welfare of a child in the first degree, § 568.045, RSMo Cum.Supp.1993. Ms. Wilson contends that there was insufficient evidence to support the conviction, and that the trial court committed plain error by allowing the prosecutor to make allegedly improper remarks during closing argument.

The judgment of the trial court is reversed.

As this case involves a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State, including all reasonable inferences drawn therefrom, and disregards all evidence and inferences to the contrary. State v. Neal, 849 S.W.2d 250, 253 (Mo.App.1993).

In 1993, Ms. Wilson and her two children, two-year-old Victoria and one-year-old Jessica, lived with Ms. Wilson's boyfriend, Steven Bentch. On the evening of August 17, 1993, Victoria was left in the care of Ms. Wilson's parents, William and Gloria Wilson. Around 11:15 p.m., Victoria became incoherent, sweaty, and pale, and Mr. Wilson called an ambulance.

Victoria was transported to Moberly Regional Medical Center. Ms. Wilson was informed of the emergency and arrived at the hospital forty-five minutes later. At that time, hospital personnel were taking photographs of injuries which Victoria had sustained to her ear, feet, and back. Ms. Wilson became upset that the photographs were being taken, and the attending physician asked Ms. Wilson how the injuries occurred.

Ms. Wilson responded that the injury to Victoria's ear was caused by a fall out of a cot, that the injuries to her feet were caused by wearing shoes without stockings, and that the injury to her back was caused by slipping on a porch step. The attending physician was not satisfied by Ms. Wilson's explanation, and ordered the child taken to Columbia Medical Center for further examination. There, Ms. Wilson offered the same explanation for Victoria's injuries. Victoria remained in the hospital for three or four days, and was then returned to Ms. Wilson's custody.

William and Gloria Wilson had limited contact with Victoria between August 17 and September 28, 1993, because Mr. Bentch told them to stay away. Then, on September 29th, Ms. Wilson telephoned her mother and said she wanted to come home because she was ill and Mr. Bentch would not allow her to go to the doctor. After Ms. Wilson and her two children arrived at her parents' home, Ms. Wilson's mother noticed that Victoria's face was black and blue. Victoria also had injuries on her toes, fingers, back, buttocks, and some of the hair on the back of her head had been pulled out.

Upon seeing Victoria's condition, Ms. Wilson's mother called the police. Ms. Wilson told her mother that Mr. Bentch had caused Victoria's injuries, and that he had hit Victoria in the face with his hand. Ms. Wilson also told her mother that Victoria's hair had been pulled out by one-year-old Jessica, but when her mother doubted that explanation, Ms. Wilson said that Mr. Bentch had told her that Victoria's hair had come out while he was brushing it. In addition, Ms. Wilson twice told her mother that she had lied to the medical authorities to keep Steven Bentch from being arrested.

Officer William Hall of the Randolph County Sheriff's Department interviewed Ms. Wilson at her parents' house. She told him that Mr. Bentch had caused Victoria's injuries. Ms. Wilson also told Officer Hall that Mr. Bentch bit Victoria's fingers and toes, and that Mr. Bentch would wipe Victoria's face in her soiled pants and force Victoria to wear the pants on her head.

In addition, Ms. Wilson told Officer Hall that this was not the first time that Mr. Bentch had inflicted injuries on Victoria. Ms. Wilson also confirmed that she had lied to the doctors in Moberly and Columbia because she did not want Mr. Bentch to get into trouble.

Shelia Dollens, a social worker with the Missouri Division of Family Services, interviewed Ms. Wilson on the same day. Ms. Wilson told Ms. Dollens that she had seen Mr. Bentch punch, bite, yell and curse at Victoria, and that Mr. Bentch had also slapped and pinched the child. Ms. Wilson also told Ms. Dollens that she had seen Mr. Bentch grab Victoria by her hair and pull or drag her. Ms. Dollens' records indicated that, between August 17 and September 28 1993, there had been four contacts between DFS and Ms. Wilson, and Ms. Wilson had not advised DFS that her daughter was being abused.

After Officer Hall and Ms. Dollens obtained information from family members, Officer Hall, Ms. Wilson and her two children went to the hospital, where Victoria was given a physical examination. At trial, Ms. Wilson acknowledged that it was not her idea to take Victoria to the hospital. She testified that they went to the hospital because one of the people investigating the incident told her that Victoria needed to be "checked out."

Hospital personnel recommended that Victoria be taken to the medical facility at the University of Missouri to have a SAFE examination, as well as a physical examination and x-rays. These procedures were done. Apart from the aforementioned examinations, Victoria did not require medical treatment for her injuries. There was also evidence that Victoria received psychological counseling.

In a complaint filed on February 14, 1994, Ms. Wilson was charged with one count of the class D felony of endangering the welfare of a child in the first degree, § 568.045. The complaint alleged that on or about the 29th of September, 1993, Ms. Wilson committed the crime by "failing to obtain or provide medical care for Victoria Wilson for recently sustained injuries inflicted upon Victoria Wilson by another, on or about the 28th day of September, 1993."

The complaint also charged Ms. Wilson with one count of hindering the prosecution of Mr. Bentch for child abuse by making false statements on August 17, 1993. At the close of the evidence, the hindering prosecution count was dismissed by the trial court, and Ms. Wilson was convicted by the jury of the endangerment count. Ms. Wilson was sentenced to a five-year term of imprisonment and assessed a $1,000.00 fine. The execution of the prison sentence was suspended, and Ms. Wilson was placed on probation for a term of five years.

In her first point on appeal, Ms. Wilson contends that the trial court erred by denying her motions for acquittal because there was insufficient evidence to support her conviction. ¹ Ms. Wilson argues that, because Victoria did not require medical treatment after her arrival at the hospital on September 29, 1993, Ms. Wilson's failure to seek such treatment could not have resulted in a substantial risk to Victoria's life, body, or health. In considering Ms. Wilson's claim, this court is limited to determining whether the jury had substantial evidence from which to find Ms. Wilson guilty beyond a reasonable doubt. Neal, 849 S.W.2d at 253.

Under § 568.045, one is guilty of endangering the welfare of a child in the first degree if he or she "knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old." Failure to provide medical treatment can constitute endangerment of the welfare of a child. State v. Dailey, 755 S.W.2d 348, 350 (Mo.App.1988).

In Dailey, the Eastern District of this court found sufficient evidence to support a mother's conviction for endangering the welfare of her child, when the mother failed to obtain a skull x-ray after her six-week-old child was dropped face first onto a concrete driveway. Id. at 350-51. "Failure to do so, following such a fall and when directed to do so by medical personnel, created a substantial risk to [the baby's] health." Id. at 350. When x-rays were obtained they revealed that the child had a fracture on each side of his skull, multiple rib fractures, and fractures of the left wrist, left thigh bone, left big toe and right lower leg, totaling at least eleven fractures in all. Id.

In Dailey, serious injuries were discovered when the child was examined and, considering the nature of the injuries, there is a reasonable inference that substantial risk to the child's health resulted from failure to obtain medical treatment. Here, although Veronica had multiple bruises and injuries to her fingers and toes from bites, there was no evidence that the medical examination disclosed any injury or condition requiring medical treatment.

The question here is whether the terms "substantial risk to the life, body or health of a child" in § 568.045 encompass the situation where a child is injured, but upon a medical examination is found to have no injury sufficiently serious to require medical treatment. Other jurisdictions, with similar statutory language, have defined the parameters of the crime of endangerment of the welfare of a child. This court looks to those cases for guidance.

The Indiana courts have...