State v. Yoksh, WD

• Decision Date: 23 March 1999
• Docket Number: No. WD,WD
• Citation: 989 S.W.2d 227
• Parties: STATE of Missouri, Respondent, v. Roger E. YOKSH, Appellant. 54873.
• Court: Missouri Court of Appeals

Page 227

989 S.W.2d 227

STATE of Missouri, Respondent, v. Roger E. YOKSH, Appellant.

No. WD 54873.

Missouri Court of Appeals Western District.

March 23, 1999.

Emmett Queener, State Public Defender Office, Columbia, for Appellant.

John M. Morris, Attorney General Office, Kansas City, for Respondent.

HANNA, Presiding Judge.

On June 10, 1997, the defendant, Roger E. Yoksh, was found guilty of murder in the second degree, pursuant to § 565.020.1, RSMo 1994, following a jury trial in the circuit court of Clay County. On September 4, 1997, the defendant was sentenced to a term of 30 years imprisonment. On appeal the defendant complains that there was insufficient evidence to prove that he caused the death of the victim, and that the trial judge failed to declare, sua sponte, a mistrial when the prosecutor misstated facts during his closing argument. We affirm.

The evidence most favorable to the verdict was that, in April of 1996, Lauri Chance began taking her son, Tristan, to the home of the defendant and his wife, Lori Yoksh, for day care. Tristan's date of birth was April 24, 1995. On August 22, 1996, Ms. Chance's father dropped Tristan off at the defendant's home at around 7:30 A.M. Although Tristan had suffered from a variety of minor childhood illnesses, on August 22 nd he was in good health and was not suffering from any serious health problems. Tristan was, at that time, past the walking stage, and would run and climb on furniture.

Ms. Chance testified that Mrs. Yoksh referred to Tristan as a "Velcro baby," meaning that he acted "clingy" around her and liked to be held. He tended to cry a lot, but he generally would stop crying if someone picked him up. He also tended to cry less when Mrs. Yoksh was around. The state's witnesses testified, generally, that the defendant complained that Tristan "crie[d] all the time" and referred to Tristan as a "cry baby." Otherwise, Tristan and the defendant got along pretty well. The state's witnesses, including a number of children that the Yokshs babysat, testified that the defendant liked to tease Tristan by yelling "boo" at him and pushing him down on his bottom.

The defendant arrived home from work at about 2:00 P.M. on the afternoon of August 22 nd. Mrs. Yoksh described the defendant as being irritable and grumpy. After taking a shower, he fell asleep on the couch. At around 4:00 P.M., Mrs. Yoksh woke the defendant and left for work, leaving him to care for Tristan and several other children. Mrs. Yoksh testified that when she left for work, she heard Tristan moving around in his crib, and she told the defendant to check on him. She indicated that she did not check on Tristan before she left, but as far as she knew he was fine. There were no other adults in the home. Robert, a ten-year old neighborhood boy, testified that, at the time Mrs. Yoksh left, Tristan was not in his crib but was standing and crawling around the house. About 20 minutes later, Robert talked with Tristan and observed Tristan laughing.

Robert's nine-year old sister, Jenny, told a police officer that, at some later time, Tristan began crying. Apparently he had bumped his head on a door jam. Jenny reported the incident to the defendant, but he was busy and he told her to "deal with it." Jenny told the officer that she picked Tristan up and set him on the couch. She also told the officer that Tristan cried for 5 to 20 minutes, and then stopped. However, when the defendant entered the room, Tristan began crying again. Jenny told the officer that the defendant went over to Tristan and yelled, "Boo, boy, quiet." Tristan began to cry more, and the defendant said, "That's it, you're going to bed."

Jenny indicated that the defendant carried Tristan down to the back bedroom and she assumed that the defendant was putting Tristan to sleep because she could hear him crying in the back bedroom. The next time she and her brother observed Tristan, at around 4:50 or 5:00 P.M., he was seated on the couch with the defendant. Robert testified that Tristan was acting "kind of tired," and he was making a groaning sound "like he was humming [himself] to sleep." Jenny told the officer that Tristan was rolling and blinking his eyes, and that he was making short, repeated, sucking or hissing noises while he breathed.

Tristan's mother, Lauri Chance, testified that she arrived at the defendant's home to pick up Tristan at around 5:42 P.M. The only other children she observed at the house, besides Tristan, were the defendant's six-year old daughter and the defendant's five-year-old nephew, Derrick. She observed the defendant sitting on the couch by the front door. Ms. Chance said he looked "different," he did not appear to be relaxed and was sitting with his hands hanging between his knees. The defendant got up to greet her, although he usually just stayed on the couch. When she went to get Tristan, Ms. Chance noticed that he appeared to be sleeping on the couch. She indicated that Tristan usually slept in the crib, and he normally took his nap earlier in the afternoon. The defendant told Ms. Chance that Tristan "fell asleep on the floor in front of the TV with his butt in the air and he put him on the couch." When she first looked at her son, she could only see his shoulders and the back of his head because he was partially covered with a thick winter-type blanket, even though it was "very hot" that day.

Ms. Chance testified that she then walked to the dining room to retrieve her diaper bag. When she returned to the couch, she saw that Tristan was lying "kind of on his back, kind of on his stomach." He was being partially propped up with a pillow. When she looked at Tristan's face, she testified that it was a "gray" almost a "neutral color," as there was no "flesh color" to his face. His eyes were open only a little bit and he was breathing in "real short, low, gaspy breaths."

Ms. Chance called Tristan's name, but he did not respond. She testified that she moved her face closer to his and began yelling and screaming his name, in an attempt to wake him up. She then picked him up under his arms and noticed he was limp, his eyes and mouth were slightly open. She began bouncing him on her knee, trying to get a response. She described the shaking as "light," with very little strength, as you would use to wake a sleeping child.

Ms. Chance testified that she asked the defendant, who was now standing behind the couch, for help. In response, the defendant picked up the telephone and called his wife at work, and asked her if "anything had been wrong with Tristan" that day. He hung up and then dialed 911. The 911 call was received at 5:47 P.M. Ms. Chance was still screaming and bouncing Tristan on her knee.

Various police officers and paramedics arrived at around 5:50 P.M. Tristan was unresponsive, his breathing was labored, and they could not detect a pulse. He was transported to Children's Mercy Hospital in an ambulance. While en route to the hospital, paramedics tried unsuccessfully to open an airway to assist his breathing. Tristan was rigid, unconscious, and experiencing some slight seizure activity. Tristan's right pupil was dilated, while his left was constricted. A paramedic surmised that Tristan's symptoms indicated that he was suffering from some type of head injury, but he did not find any external trauma indicative of a head injury.

When Tristan arrived at Children's Mercy at 6:23 P.M., he was pale, actively seizing, and he had a very rapid but regular heartbeat. The emergency room doctor testified that Tristan's soft spot "was actually bulging," which suggested that there was something causing increased pressure within the skull. Moreover, pronounced differences in the sizes of Tristan's right and left pupils suggested that he might be suffering from some type of right side brain injury. The doctor found no external bruising or swelling of Tristan's scalp indicating a head trauma. Tristan's condition progressively deteriorated. Over time he responded less and less to stimulation, indicating less brain function and worsening injury.

Tristan died at Children's Mercy on August 26 th, four days after he was admitted. The Clay County Medical Examiner, Dr. Thomas Young, testified as to the autopsy results. The autopsy revealed two recent bruises to the back of Tristan's head; the one on the left side was slightly larger than the bruise on the right side, but both were directly in the back of the head and symmetrical. He also testified that "there was a great deal of hemorrhage on the back of the head and on the left side of the head." There were fractures along Tristan's lambdoidal sutures, i.e., the two lines that separate the plates of the skull. In addition, there was a small linear fracture that went down the left side of that fractured lambdoidal suture. There also was a "gaping fracture" that extended to the left side of the head, about one eighth of an inch wide. Additionally, there was a small blood clot over the surface of the brain on the right side, and the brain was markedly swollen and soft.

The autopsy also revealed hemorrhages in Tristan's retinas. Dr. Young testified that such hemorrhages occur when the brain undergoes a "very, very severe motion inside the cranial vault." Hemorrhages such as these are usually caused when a baby is shaken violently, but they can also result from a "very severe impact of the head." Dr. Young also stated that fractures to a child's suture line can only be caused by a "very, very severe blow to the head" or some "very severe force" such as an automobile collision. A fall backward into a doorway, or a fall off of a couch onto a coffee table or the floor, he testified, could not generate sufficient force to cause such a serious injury.

Dr. Young concluded that, in view of the extensive injuries--including the multiple fractures, the swollen brain, the subdural blood clot and the retinal hemorrhages--a child receiving these injuries would not be able to walk...