State v. Hines, 377 S.W.3d 648

Defendant was convicted by jury of class C felony abuse of a child for choking Child with a CPAP hose and was sentenced to 15 years’ imprisonment.
The State alleged Defendant knowingly inflicted cruel and inhuman punishment on a child under 17 by wrapping the hose around Child’s neck.
Evidence showed Defendant consumed alcohol, lived with White and the children, and escalated conflicts after returning to the home in 2009.
During the October 9, 2009 incident, Child cried, hid behind White, and was choked when the hose was wrapped around her neck; she later faintly breathed and was cried out.
White testified to the choking, the threat to leave, and the later attempt to deflate tires while Defendant spoke of harming others if police were called.
Photographs showed no clear visible injuries, but a police officer observed a red neck mark shortly after the incident; a Children’s Division interview occurred about 18 hours later.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence	State contends evidence shows knowingly inflicted cruel and inhuman punishment.	Hines argues lack of proof that actions were cruel and inhuman or that he knowingly caused them.	Sufficient evidence supports conviction
Instruction on lesser-included offense	State asserts endangering welfare second degree is not a lesser-included offense of abuse of a child.	Hines contends the court should have instructed on second-degree endangerment as a lesser offense.	Second-degree endangerment is not a lesser-included offense; no instruction error

State v. Whiteley, 294 S.W.3d 114 (Mo.App.2009) (standard of review for sufficiency—defer to jury)
State v. Simmons, 270 S.W.3d 523 (Mo.App.2008) (credibility and weighing of evidence within jury function)
State v. Still, 216 S.W.3d 261 (Mo.App.2007) (weight of testimony and credibility for appellate review)
State v. Meuir, 138 S.W.3d 137 (Mo.App.2004) (credibility and witness evaluation for the jury)
State v. Hobbs, 106 S.W.3d 498 (Mo.App.2003) (jury may accept or reject testimony)
Breedlove, 348 S.W.3d 810 (Mo.App.2011) (intent may be inferred from surrounding facts)
Latall, 271 S.W.3d 561 (Mo.banc 2008) (two equally valid inferences; only guilt-supporting inference considered)
Horton, 325 S.W.3d 474 (Mo.App.2010) (elements-focused analysis of lesser-included offenses)
Dunson, 979 S.W.2d 237 (Mo.App.1998) (cruel and inhuman punishment broader than physical injury)
Biggs, 333 S.W.3d 472 (Mo.banc 2011) (abuse may not require physical injury; focus on cruel and inhuman punishment)
Lauer, 955 S.W.2d 23 (Mo.App.1997) (injury not required for abuse of a child)
Greenlee, 827 S.W.3d 602 (Mo.App.2010) (elements-focused lesser-included analysis)