Mar quicio Johnson (“Defendant”) appeals from the judgment following his conviction of one count of murder in the second degree, Section 565.021 RSMo (2000),
In November 2009, the 2-year-old victim (“Victim”) moved to St. Louis to live with her mother’s aunt (“Aunt”) and Aunt’s live-in boyfriend, Defendant. Upon moving to St. Louis, Victim had no visible injuries and was in good health. On December 15, 2009, Aunt worked an overnight shift. When she left the house, Victim was asleep and Defendant was lying in bed. No one else was in the house when Aunt left for work.
Early the next morning, Defendant tried calling Aunt as Victim was unconscious on the kitchen floor. Defendant tried calling Aunt numerous times but was unable to reach her. After Victim had been unconscious for about thirty minutes, Defendant called 911. Victim was taken to the hospital where she was pronounced dead the next day.
Victim had multiple bruises on her upper body and a second-degree burn on her left hand. She also had a fracture to the back of her skull and bleeding in the skull. At trial, the pediatrician who declared Victim dead testified these injuries would not be caused by a fall, but would be from “a knockout blow.” The pediatrician further testified these injuries were not accidental. The forensic pathologist who performed Victim’s autopsy testified that he believed all the injuries occurred at the same time and the injuries were consistent with Victim being struck by an iron that was recovered from the house.
Dr. Case performed her own examination of Victim’s brain and eyes. Dr. Case used a BAPP stain to find tearing of the axonal processes. Dr. Case concluded this damage required the type of force seen in a motor vehicle accident and could not be the result of a short fall. Before Dr. Case testified, the court discussed the BAPP staining procedure with the parties outside the presence of the jury based on Defendant’s motion in limine requesting the exclusion of all testimony regarding DAI. Defendant requested a Frye evidentiary hearing and argued that BAPP staining was not generally accepted within the scientific community. Defendant offered a 2011 article from a forensic journal (“the 2011 Article”) discussing preliminary findings suggesting BAPP staining on infants could show signs of trauma where no trauma had occurred. The trial court found the 2011 Article did not cast doubt on the BAPP staining procedure, denied Defendant’s motion in limine and request for a Frye hearing, and allowed Dr. Case to testify.
The jury found Defendant guilty of murder in the second degree, class A felony abuse of a child, class C felony abuse of a child, and endangerment of a child. Prior to trial, the court had found Defendant was a prior and persistent offender because Defendant had previously pleaded guilty to four felonies. Each of those felonies was a separate charge of burglary of a motor vehicle
For his first point, Defendant argues the trial court abused its discretion in denying Defendant’s motion in limine, denying Defendant’s request for a Frye evidentiary hearing, and allowing Dr. Case to testify about using BAPP staining to diagnose TAI and DAI. We disagree.
A trial court has broad discretion to admit or exclude evidence at trial, and the trial court’s ruling will be reversed only if the court clearly abused its discretion. State v. Forrest,
Missouri courts follow the test articulated in Frye v. United States,
Defendant challenged the admissibility of Dr. Case’s testimony regarding the use of BAPP staining to diagnose TAI and DAI based on the 2011 Article. Outside the presence of the jury, the trial court discussed the contents of the article with the parties. The trial court specifically mentioned several parts of the article stating it is based on preliminary observation, not a systematic study, and serves to caution others that axonal injuries in infants are not per se evidence of trauma. The 2011 Article does not cast doubt upon the BAPP staining procedure itself, but cautions others as to the conclusions they reach when reviewing BAPP staining on infants. The court concluded that the article did not cast doubt upon the general acceptance of BAPP staining in the scientific community and a Frye hearing would therefore be unnecessary.
The trial court revisited the BAPP staining issue the next day because the court was concerned it had assumed BAPP staining was generally accepted in the scientific community. The State offered the transcript from a 2009 case that held a Frye hearing on BAPP staining. Based on the testimony in this transcript, the trial court concluded that BAPP staining was a procedure generally accepted in the scientific community. The court then restated its conclusion from the previous day that the 2011 Article did not negatively affect the procedure’s general acceptance in the scientific community.
Because the interpretation of BAPP staining results was arguably in question as a result of the 2011 Article, the trial court allowed Defendant to use that article in its cross-examination of Dr. Case. During cross-examination, Dr. Case explained
Based on this record, a Frye hearing was not necessary to admit Dr. Case’s testimony on BAPP staining. The 2011 Article did not suggest that the BAPP staining procedure should no longer be followed, but merely discussed how to interpret the staining results of nerve roots in infants. The trial court reviewed evidence showing BAPP staining is a procedure with general acceptance in the scientific community and the 2011 Article did not cast any doubt on that conclusion.
The trial court did not err in denying Defendant’s motion in limine, denying its motion for a Frye hearing, or allowing Dr. Case to testify regarding BAPP staining in diagnosing TAI or DAI. Point denied.
For his second point, Defendant argues the trial court erred in overruling Defendant’s motion for acquittal on the charge of endangerment of a child because the State did not offer sufficient evidence to support the charge. We disagree.
In a sufficiency of the evidence challenge, we review whether there was sufficient evidence, taken in the light most favorable to the State, such that any reasonable juror could find the Defendant guilty of all essential elements of the crime beyond a reasonable doubt. State v. Nash,
The elements of endangerment of a child in the first degree are (1) the defendant engaged in conduct; (2) in so doing, the defendant created a substantial risk to the life, body, or health of a child; (3) the victim was less than seventeen years old; and (4) the defendant acted knowingly with regard to the facts and circumstances. State v. Short,
Defendant argues there was insufficient evidence that he knowingly created a substantial risk to Victim’s life, body, or health. However, Defendant’s argument is based on evidence taken in the light most favorable to him; that is, that Defendant called Aunt immediately upon learning Victim was unconscious and waited only eleven minutes before he called 911. We must consider the evidence in the light most favorable to the State, however. In the light most favorable to the State, the evidence shows Victim was unconscious for thirty minutes before Defendant called 911. A reasonable juror could find that an unconscious child requires immediate medical attention and could further find, beyond a reasonable doubt, that waiting thirty minutes before calling 911 creates a substantial risk to the life and health of the child.
Therefore, the State offered sufficient evidence to obtain a guilty verdict for endangerment of a child in the first degree and the trial court did not err in overruling Defendant’s motion for acquittal. Point denied.
For his third point, Defendant argues the trial court erred in finding Defendant to be a persistent offender, Section 558.016.3, because the State failed to prove Defendant’s four prior felonies were “committed at different times.” We agree.
Section 558.016.3 defines a persistent offender as one “who has pleaded guilty or has been found guilty of two or more felonies committed at different times.” Section 558.016.3. Courts may infer that prior felonies were committed at different times when the record supports a finding beyond a reasonable doubt that the prior felonies were committed at different times. State v. Bourrage,
The persistent offender statute requires the State to prove a defendant’s prior felonies were committed at different times. Sanchez,
Similarly here, the State did not offer sufficient evidence to prove beyond a reasonable doubt that Defendant’s four Tennessee felonies of burglary of a motor vehicle occurred at different times. It is unclear whether Defendant entered the four vehicles as part of a continuous action or whether the felonies occurred as separate and discrete offenses. It is quite plausible, in fact, that all four motor vehicles were in the same location and it is further plausible that Defendant entered all four vehicles with the intent to commit a felony, theft, or assault over a very short time period. This version of events would support a single-episode inference and, without further evidence from the State, creates a reasonable doubt that Defendant committed these felonies “at different times.” Because the State failed to meet its burden, labeling Defendant a persistent offender was in error.
Defendant acknowledges that his sentences were within the range of punishment without a persistent offender finding. When a defendant’s sentence is not enhanced by an erroneous finding of persistent offender status, the defendant is not prejudiced and we may correct the judgment by deleting the finding that defendant was a persistent offender. State v. Adams,
The judgment and sentence is corrected by removing the finding that Defendant is a persistent offender. As modified, the judgment is affirmed.
Notes
. Unless otherwise noted, statutory references are to RSMo (2000).
. In Tennessee, a person commits burglary of a motor vehicle if, without the effective consent of the property owner, he enters a motor vehicle with the intent to commit a felony. theft, or assault, or commits or attempts to commit a felony, theft, or assault. Tenn.Code Section 39-14-402(a)(4).