402 S.W.3d 182
Mo. Ct. App.2013Background
- Victim, a 2-year-old, moved to St. Louis to live with Aunt and Defendant in November 2009; Victim initially in good health with no visible injuries.
- Defendant, Aunt’s live-in boyfriend, was alone with Victim after Aunt left for work on December 15, 2009.
- Victim became unconscious and died about 30 minutes before emergency medical services were called; Victim had bruises, a skull fracture, a burn, and skull bleeding.
- Pediatrician and forensic pathologist testified the injuries were not consistent with a fall and suggested a knockout blow; injuries matched being struck with an iron.
- Dr. Case used beta-amyloid precursor protein (BAPP) staining to diagnose traumatic/ diffuse axonal injury; Frye/BAPP admissibility contested but allowed.
- Trial court found Defendant guilty of murder in the second degree, two counts of abuse of a child, and first-degree endangerment of a child; Defendant previously pled guilty to four Tennessee felonies (burglary of motor vehicles) which the court treated as prior/persistent offender qualifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of BAPP staining testimony for TAI/DAI | State offers BAPP as generally accepted; Frye not required. | BAPP not generally accepted; Frye hearing required. | No reversible error; BAPP testimony admitted; article did not negate general acceptance. |
| Sufficiency of evidence for endangerment of a child (first degree) | Victim unconscious for 30 minutes; defendant delayed 911. | No substantial risk created; delay was reasonable. | Evidence sufficient; conviction affirmed. |
| Persistent offender designation erroneous | Felonies occurred at different times. | Error to label as persistent offender; remove finding; modify judgment. |
Key Cases Cited
- State v. Forrest, 188 S.W.3d 218 (Mo. banc 2006) (abuse of discretion standard for evidentiary rulings)
- State v. Daniels, 179 S.W.3d 273 (Mo.App. W.D. 2005) (Frye test for scientific evidence admission)
- State v. Endicott, 732 S.W.2d 239 (Mo.App.S.D. 1987) (burden to prove general acceptance of scientific procedure)
- State v. Keightley, 147 S.W.3d 179 (Mo.App.S.D. 2004) (Frye hearing not required if evidence properly admitted)
- State v. Short, 186 S.W.3d 828 (Mo.App.E.D. 2006) (elements of endangerment of a child test)
- State v. Mahurin, 799 S.W.2d 840 (Mo.banc 1990) (knowing failure to obtain medical care can support conviction)
- State v. Bourrage, 175 S.W.3d 698 (Mo.App.E.D. 2005) (infer whether felonies committed at different times)
- State v. Sanchez, 186 S.W.3d 260 (Mo.banc 2006) (felonies not clearly separate may be a single episode)
- State v. Torello, 334 S.W.3d 903 (Mo.App.E.D.2011) (standard for determining single-episode offenses)
- State v. Adams, 350 S.W.3d 864 (Mo.App.E.D.2011) (removal of persistent offender finding; no prejudice from non-punitive error)