State of Missouri v. Tony Ray King , 453 S.W.3d 363 ( 2015 )

In the
Missouri Court of Appeals
Western District

STATE OF MISSOURI, 
 WD76667
Respondent,  OPINION FILED:
v. 
 January 27, 2015
TONY RAY KING, 

Appellant. 


Appeal from the Circuit Court of Buchanan County, Missouri
The Honorable Randall R. Jackson, Judge
Before Division Four: Alok Ahuja, C.J. Presiding,
James Edward Welsh, J., and Patrick Campbell, Sp. J.
Tony Ray King appeals his convictions, following a jury trial, for murder in the first
degree (§ 565.020),1 child abuse in the first degree (§ 568.060), and arson in the second degree
(§ 569.050). We affirm the circuit court's judgment.
Background
In January 2012, King was charged as a prior and persistent offender with first-degree
murder, felony child abuse, and second-degree arson. The State alleged (1) that on January 10,
2012, King had caused the death of his seven-year-old son (herein referred to as "Son") by
strangling or choking him, (2) that between November 16, 2011, and January 10, 2012, King had
1
Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, unless otherwise noted.
repeatedly physically abused Son, and (3) that on the morning of January 11, 2012, King had set
fire to his mobile home in order to conceal Son's murder.
Viewed in the light most favorable to the verdict,2 the evidence at trial showed that at the
time of Son's death, he was living with King in a mobile home in rural Harrison County. Son
attended school in Bethany and rode the school bus. King was involved in a custody battle with
Son's mother, Mira Huffman, who lived in Bethany. Son began living with King in late August
2011 when King obtained an ex parte order of protection restricting Huffman's access to Son and
granting King temporary custody.
After multiple postponements, a hearing was held on October 20th. The judge found a
lack of evidence for a full order of protection and set aside the ex parte order. Following the
hearing, Huffman picked Son up from school and took him to her home in Bethany. King
traveled to neighboring Gentry County that same day and there obtained another ex parte child
protection order. The next day, King came by and snatched Son out of Huffman's yard. When
Huffman called King, he told her that she would never see her son again.
About a month later, just before the Thanksgiving break, Son's teacher, principal, and
school counselor began noticing suspicious scrapes, bruises, and sores on Son. Based on these
observations, and because Son was giving the educators differing explanations for the injuries,
the school called the child abuse hotline. A caseworker and a deputy sheriff went to King's
home to investigate. They observed Son's injuries, but the Children's Division ultimately
concluded that his injuries were consistent with the stories that King gave them.
Son's teacher saw additional injuries on Son when he came back from the Thanksgiving
break. From mid-November until the day of the fire, Son was in school only fifteen of the thirty-
2
State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009).
2
two school days, and he attended only four of the fourteen school days in December. Over
Christmas break, Son was injured again and was taken to Children's Mercy Hospital. King told
Children's Mercy personnel that a tree fell on Son. When school resumed on Tuesday, January
3rd, Son was absent. When he returned the next day, he had numerous bruises on his face and a
tear in the crease behind his ear. Son attended school on Thursday and Friday, the 5th and 6th.
On the 6th, King was notified that Son had been suspended from riding the bus for three
days due to misbehavior. King called the school on the 9th, the first day of the bus suspension,
and told them that Son would not be at school due to a counseling appointment. That evening,
Son was with King when one of King's friends observed numerous bruises and injuries on Son.
King told the friend that Son had gotten kicked off the bus and that he was going to take him
home and "beat his butt" because of it.
The next day, January 10th, King called the school and stated that Son was going to be
living with King's sister in Albany and that he would be going to school there. That same
morning, King visited Robert Hunter at Hunter's apartment. Hunter looked into the cab of King's
pickup as they talked and saw a small person lying on the passenger seat. The figure was
entirely covered with a blanket except for his right hand and appeared to be about the same size
as a seven-year-old child. Hunter asked King why he had his son with him. King said that Son
was not feeling well and that he was going to take him to his (King's) sister's house. Hunter
never saw the child move during the entire conversation.
On January 10th, King told another friend, Eric Bridger, that Son was staying with his
sister. That evening, King's sister, Nicole Perry, called Bridger trying to find Son. Perry told
Bridger that she had spoken with King and that King would not tell her where Son was.
3
On Wednesday, the 11th, between 6:30 and 6:45 a.m., David Baker and Tanner Henry
arrived at the property where King's mobile home was located. They had been working at
scrapping metal on the property since Monday. When they arrived on Wednesday, they saw
King sitting in a pickup truck that had a trailer attached. King borrowed a log chain from the two
men. Baker and Henry then drove down over the crest of a hill and started working about a
quarter-mile away. Five or ten minutes later, King brought the chain back and told them that he
was going to take his trailer to a tire shop a couple of miles away. During the two days that the
two men had been there working, they had not seen Son, nor did King ever discuss him. This
time, however, King told them that Son was in the house sleeping and asked them to tell Son
where King had gone was if they should see him.
When King arrived at the tire shop at around 6:50 a.m., Brent Nible was there with his
children waiting for the school bus. King told Nible that he was leaving his trailer at the shop.
He also told Nible that Son had gotten kicked off the school bus and so he would have to take
him to school. The school bus arrived at around 6:57 a.m., and Nible left.
Shortly before 7:00 a.m., Baker and Henry noticed smoke coming from the vicinity of
King's mobile home. Baker drove up the hill and saw that the mobile home was on fire. He
honked the horn to alert Henry, and Henry started up the hill on foot. Baker found King at the
front door of the mobile home. King had a sweatshirt wrapped around his face and apparently
was trying to get inside. King said that he had lost his phone, so Baker called 911. King then
told Baker, "My son's in there." When Henry arrived, he and Baker repeatedly asked King
where his son was located. King simply pointed in the general direction of the flames. While
Baker and Henry tried to get into the home, first at one end and then the other, King calmly sat in
his pickup. Henry broke out a window, and he and Baker shouted into the mobile home. They
4
asked King for his son's name three or four times before King told them. Baker and Henry then
shouted Son's name but received no response. At one point, King futilely rammed his truck into
the frame of the mobile home several times, but Baker and Henry observed that he did not speak
or display any emotion.
Deputy Joe Hamilton arrived at the scene at approximately 7:15 a.m. and saw that flames
and heavy smoke were coming from the center of the mobile home. Baker and Henry both
observed that after Hamilton arrived, King then became emotional and began to cry. Hamilton
asked King where his son might be in the mobile home. King said that he was in a bedroom in
the southeast corner. King then went to the east end of the home and broke out a window. It
was not possible to get in the window due to the smoke and fire coming out. King told Hamilton
that Son had been awake and dressed that morning but that he did not want to go with King to
the tire shop, so he left Son at home. King stated that he had filled his two wood stoves with
wood before he left, and when he returned a short time later, the house was on fire.
When the fire crew arrived at approximately 7:33 a.m., the center portion of the mobile
home was completely destroyed by fire and the remaining portions of it were fully involved.
After putting out the fire, firefighters found Son's body in his bedroom at the east end of the
mobile home. He was lying facedown on what remained of his bed.
In the midst of all this, Son's mother was driving by King's residence to show her brother
where Son was living. As they drove near, Huffman saw smoke, and when they topped the hill,
she saw that the smoke was coming from the mobile home. Huffman got out of her car and
headed up the driveway asking for Son. A police officer stopped her and told her that Son was
already gone.
5
After the fire that day, King went to the home of Eric Bridger and Bailey Hutchins to
clean up. Hutchins overheard King say that he needed to get rid of two gas cans.
The fire investigator testified that he found no accidental causes for the fire. He was
unable to determine a specific cause, but noted that the fire progressed faster than he would have
expected. He did not find evidence of any accelerants, but, given the short time frame and the
amount of damage from the fire, he suspected that accelerants had been used.
The toxicologist, Dr. Christopher Long, testified that the carbon monoxide levels in Son's
blood were less than 10%, which is within the normal range. He stated that 40% is generally the
minimum level of carbon monoxide saturation required to cause death.
Dr. Keith Norton performed the autopsy and found extensive burning of Son's body.
Only portions of the right side of the body had not been burned. He found a number of bruises
on Son's body and injuries to his organs, but he found no soot in Son's trachea or lungs. Dr.
Norton determined that Son was dead before the fire started. Dr. Norton concluded that Son did
not die from smoke inhalation, but rather from a lack of blood flow to the brain "probably" due
to manual strangulation.
The jury found King guilty of first-degree murder, felony child abuse, and second-degree
arson. The court sentenced King to life without the possibility of parole for the murder and two
fifteen-year prison sentences for the abuse and arson counts, all to be served consecutively.
Discussion
King raises six points on appeal. His first three points challenge the sufficiency of the
evidence to support the jury's findings of guilt as to all three convictions. In reviewing the
sufficiency of the evidence, we accept as true all evidence and inferences favorable to the State,
and we disregard all evidence and inferences to the contrary. State v. Crawford, 68 S.W.3d 406,
6
407-08 (Mo. banc 2002). Our review is "limited to determining whether there is sufficient
evidence from which a reasonable juror might have found the defendant guilty beyond a
reasonable doubt." Id. at 408. When reviewing the sufficiency of the evidence to support a
criminal conviction, we do not act as a "super juror" with veto powers, but we instead greatly
defer to the jury's findings. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011).
Point I: First-Degree Murder
In Point I, King contends that the circuit court erred in overruling his motion for acquittal
on first-degree murder because the evidence established only that Son "probably died from
manual strangulation," without any other corroborating evidence, and mere speculation about the
cause of death, without more, is insufficient to support a conviction for first-degree murder.
"In considering the sufficiency of the evidence, there must be sufficient evidence of each
element of the offense." State v. Dixon, 70 S.W.3d 540, 544 (Mo. App. 2002). The elements of
first-degree murder are derived from section 565.020.1, which states: "A person commits the
crime of murder in the first degree if he knowingly causes the death of another person after
deliberation upon the matter." Thus, in order to convict King of first-degree murder, the jury had
to find that he caused the death of Son by strangling him, that he knew his conduct was
practically certain to cause the death, and that he caused Son's death after deliberation.
At trial, the doctor who performed the autopsy, Dr. Norton, told the jury that the probable
cause of Son's death was manual strangulation. He testified that Son had bruises along the right
side of the chin line and jawline, one closer to the chin, and further back closer to the ear. The
bruises appeared to be recent, having occurred within twenty-four hours. There were also recent
bruises just above and below the right collarbone, which, Dr. Norton explained, is an area that
children are not likely to injure while playing. There were also bruises on the neck consistent
7
with having been strangled or choked, and there was bruising in the tissues around and behind
the larynx. Significantly, Dr. Norton found no soot in the trachea or lungs. Dr. Norton
concluded that the cause of death was "probably lack of oxygen to the brain secondary to not
enough blood flow to the brain related to the pressing – the compression of the blood vessels in
the neck."3 The bruising in the neck indicated blunt force injury to the neck, and the lack of any
other cause of death indicated that the cause of death was manual strangulation. Dr. Norton
testified that it takes a minimum of ten seconds of strangulation in order for someone to become
unconscious and that it likely would take another one to two minutes for death to occur.
The toxicology results showed that the carbon monoxide saturation in Son's blood was
less than 10%, which is within the normal range, and was nowhere near the minimum 40%
required to cause death. This, along with the evidence that there was no soot in Son's trachea or
lungs, established that Son was dead before the fire started.
King faults Dr. Norton for testifying that the victim "probably" died from manual
strangulation, but Dr. Norton's opinion did not have to be absolute for the evidence to be
sufficient. See State v. Carter, 670 S.W.2d 104, 106-07 (Mo. App. 1984) (where medical
examiner concluded, by process of elimination, that the victim died by asphyxiation but could
not positively state the cause of death, the court held that the doctor's inability to positively
determine the exact cause of death was only a factor for the jury to consider). Here, there was
evidence that corroborated Dr. Norton's finding of causation. He testified that he saw bruises on
the neck consistent with the child having been strangled or choked. There was bruising in the
tissues around and behind the larynx. These bruises became visible as Dr. Norton laid back the
3
Dr. Norton opined that another possible cause of death could have been blunt force trauma to the head but
that, due to the condition of the head, that would be impossible to determine.
8
muscles layer by layer in the course of the autopsy. The bruising in the neck indicated blunt
force injury to the neck, and the lack of any other cause of death indicated that the cause of death
was manual strangulation. This was sufficient evidence to prove that Son was murdered.
The circumstantial evidence also supports the jury's finding that King knowingly caused
his son's death. In October, King took Son from his mother and told her that she would never see
him again. Over the course of the next few months, while in King's custody, Son was seen at
school with suspicious injuries and bruises, and he was often absent from school. After King
was notified on January 6 that Son had lost his bus privileges, Son was never in school again.
On the evening of January 9, King told Kelly Davis that Son had gotten kicked off the bus and
that he was going to take Son home and "beat his butt." On January 10, King called the school
and stated that he was taking Son out of school. That same day, Robert Hunter saw Son's
motionless body in the cab of King's truck covered with a blanket except for one hand. King told
Hunter that he was going to take Son to his sister's house, and he told Eric Bridger later that day
that Son was at his sister's house. That evening, King's sister called Bridger asking if he knew
the whereabouts of Son. She said that King would not tell her where Son was. Additionally,
King repeatedly contradicted himself on the morning of the fire. He made a pointed effort to ask
Baker and Henry to tell Son that he was at the tire shop. His story to Deputy Hamilton was that
he told Son that morning that he was going to the tire shop. King told Brent Nible that he would
have to take Son to school because he had gotten kicked off the bus. After the fire, King told
Baker that he told Son that morning that he "wasn't going to make him go to school, so he could
go back to sleep until I got this trailer fixed, and then I'd come back and get him out, and he
could go with me to St. Joe." Also, Baker and Henry both testified about King's lack of
cooperation in helping them find and rescue Son from the fire and about the change in King's
9
behavior once law enforcement arrived. After the fire, Bailey Hutchins heard King say that he
needed to get rid of two gas cans.
The foregoing evidence is sufficient for a reasonable juror to find that King knowingly
caused Son's death by strangling him. There also was sufficient evidence for the jury to find
"deliberation." The jury was instructed that "deliberation" means "cool reflection" upon a matter
"for any length of time no matter brief." § 565.002(3). Dr. Norton's testimony that it would take
one to two minutes for a person to die from strangulation satisfied that definition.
In sum, the court did not err in denying King's motion for acquittal because the evidence
was sufficient for a reasonable juror to find King guilty of first-degree murder. Point denied.
Point II: Child Abuse
In Point II, King contends that the circuit court erred in overruling his motion for
acquittal as to first-degree child abuse because the State's evidence consisted of nothing more
than speculation that Son's injuries resulted from abuse at the hands of King, and such
circumstantial evidence is insufficient to support a conviction for first-degree child abuse.
Under the relevant statute, "[a] person commits the crime of abuse of a child if such
person [k]nowingly inflicts cruel and inhuman punishment upon a child less than seventeen years
old[.]" § 568.060.1(1). Here, the State alleged that on or between November 16th, 2011, and
January 10th, 2012, King struck Son "with such repetition and force as to leave bruises and
abrasions on [him]," that, in so doing, King "inflicted cruel and inhuman punishment upon
[Son]," that Son was "less than seventeen years old," and that King "knew his conduct was
inflicting cruel and inhuman punishment upon [Son]."
The following evidence of child abuse was presented at trial. Kelly Davis testified that
sometime in September or October 2011, he was with King when he saw King slap or hit Son.
10
Davis did not believe that was appropriate discipline, and he warned King that he had "better not
ever see that happen again."
In November, Son's teachers and counselors began noticing suspicious injuries on him.
On November 16, the school principal noticed a bump on Son's forehead. About a week later,
Son was having behavioral problems, and the school nurse called King to ask if Son had taken
his medication that morning. Within minutes, King came to the school, talked to Son, told him
to apologize to the class, and requested that Son be kept in from recess as punishment. The next
day, when Son came to class, he had purple splotches under his right eye and a purple or pink
mark in the left corner of his eye. Son said that another student had accidentally punched him.
As the day progressed, a bruise appeared on Son's right cheek and left forehead. Son told the
school nurse that he got the injuries by falling at his house. Son told the principal that another
boy in his class had caused the injury, but he then said that he did not know how it happened. He
told the school counselor that he got his injuries in a fight with another boy and later said that he
had fallen down the stairs.
The school counselor was concerned because Son gave different stories about what had
happened to him. By November 29, the injuries had worsened, the bruising was darker, and Son
had scratches around his eyes and his neck. Son also had a large infected rip in the crease behind
his ear. The principal called the child abuse hotline. In response to the hotline call, a Children's
Division worker went to King's home and observed the injuries on Son. Son told the worker that
he got hurt on the playground and that the scratch marks were from a child on the school bus.4
4
King notes that the Children's Division found the abuse allegations to be "unsubstantiated." In reviewing
for the sufficiency of the evidence, however, we view the evidence in the light most favorable to the jury's verdict.
11
On December 1, Son's teacher, Jamie Carter, spoke with King. King told her that
someone from the Children's Division had visited his home regarding Son's injuries. King said
that Son told him that he had fallen at school. Carter told King that she did not recall that
happening and said that Son had given several different stories as to how he got his injuries.
King stated that Son often lied and that he tended to become a target when playing with other
children. Carter told King that she disagreed and that she had not observed that.
Son was only in school three out of fourteen days in December. He was out of school the
entire week of December 5th. When he returned to school on December 12, he had a red spot in
his left eye. Son said that he had poked himself in the eye with a stick. Son was in school
December 12 and 13, but was absent the rest of the week.
After the Christmas break, school resumed on January 3, but Son was not in attendance.
The school was told that a tree had fallen on Son and that he was in the hospital. When Son
returned to school on January 4, he had numerous large bruises on his face and a tear in the
crease behind his other ear. Carter thought that Son "looked like a walking zombie." In addition
to saying that a tree had fallen on him, Son also reported that some kids had gotten BB guns for
Christmas and shot him in his butt and back.
On January 9, three days after King was told that Son had lost his bus privileges, Kelly
Davis noticed that Son had bruises on his neck and stomach. Davis asked Son if his father had
done that, and Son said no. Before leaving, King told Davis that Son had gotten kicked off the
bus and that he was going to take Son home and "beat his butt." On January 11, Son's body was
found in King's burned mobile home; Son had been strangled to death.
As noted, Dr. Norton found that Son had recent bruises along the right side of his jaw
line, one closer to the chin, and one further back closer to the ear. In addition to the bruises on
12
and around Son's neck and collarbone and the bruising in the tissues around and behind the
larynx, there also were bruises on his right arm that were consistent with having been grabbed
very hard. Dr. Norton also found bloody fluid and pus in Son's chest cavity, which indicated
inflammation that had existed for some time and could have been caused by blunt impact to the
chest. There was also bleeding around the right lung and bruising behind the belly cavity, both
of which also could have been caused by blunt impact.
King argues that this evidence is insufficient to support his conviction for child abuse
because it does not prove that he caused the bruises or that the injuries were anything more than
accidental. We disagree. The circumstantial evidence in this case was sufficient to establish
King's guilt of child abuse beyond a reasonable doubt. "The State may prove its case by
presenting either direct or circumstantial evidence [as to] each element of the crime." State v.
Jones, 296 S.W.3d 506, 509 (Mo. App. 2009). "Circumstantial evidence is given the same
weight as direct evidence and the jury is free to make reasonable inferences from the evidence
presented." Id. "Circumstantial evidence alone can be sufficient to support a conviction." State
v. Jackson, 439 S.W.3d 276, 278 (Mo. App. 2014).
Here, a reasonable juror could infer from the evidence presented that King was injuring
his son, was lying about how the injuries occurred, was instructing his son to lie about how the
injuries occurred, and, when the school and Children's Services became concerned, pulled his
son out of school. This evidence, combined with the fact that King was heard threatening to take
Son home and "beat his butt" and had been seen inappropriately physically disciplining his son
before, was sufficient evidence for a reasonable juror to find King guilty of child abuse.
13
Viewing the evidence in the light most favorable to the verdict, there was sufficient
evidence from which a reasonable juror could find that King inflicted cruel and inhuman
punishment on Son and was guilty of felony child abuse. Point denied.
Point III: Arson
In Point III, King contends that the circuit court erred in overruling his motion for
acquittal as to second-degree arson because the State's evidence consisted of mere speculation
that King set the fire, and such circumstantial evidence is insufficient to support a conviction of
second-degree arson.
A person commits second-degree arson "when he knowingly damages a building or
inhabitable structure by starting a fire or causing an explosion." § 569.050.1. To make a
submissible case, the State must prove that a building was on fire, the fire was of an incendiary
origin, and the defendant participated in commission of the crime. State v. Bolds, 913 S.W.2d
393, 397 (Mo. App. 1996). "Arson is a crime usually committed in stealth and seldom in the
view of witnesses and, hence, guilt must ordinarily be proven by circumstantial evidence." State
v. Simpson, 606 S.W.2d 514, 518 (Mo. App. 1980). "All elements of arson may be proven by
circumstantial evidence." Bolds, 913 S.W.2d at 398. Circumstances need not be absolutely
conclusive of guilt and need not demonstrate impossibility of innocence. Id.
Here, the State alleged that on or about January 11, 2012, King knowingly damaged an
inhabitable structure and that he did so by starting a fire. King claims that the State failed to
prove that the fire was of incendiary origin. We disagree. Evidence of an incendiary origin does
not require that there be proof of some highly combustible material. State v. Paglino, 291
S.W.2d 850, 857 (Mo. 1956). For a fire to be incendiary, there need only be some evidence,
direct or circumstantial, that the person charged intentionally set the property on fire. Id.
14
At trial, the State presented the testimony of fire investigator Mark Fechtig. He testified
that when he arrived on the scene at around 9:00 a.m., the mobile home was about three-quarters
destroyed by fire. His investigation revealed no accidental cause for the fire. The two wood
stoves were in good condition. There was no indication that the fires had started either in the
stoves or in the flue pipes. Fechtig found that the breaker box was still intact. Because the
breaker box was found in a portion of the mobile home that was still standing, Fechtig concluded
that the fire had not originated there. Fechtig was unable to determine a specific cause of the fire
but noted that it progressed faster than he would have expected. Fechtig did not find evidence of
any accelerants, but given the time line of the fire, he would not have expected any evidence of
accelerants to remain. Moreover, given that the fire took only about fifteen to twenty minutes to
burn the home, Fechtig believed that an accelerant of some sort was used. Fechtig's testimony
constituted sufficient evidence that this fire was incendiary in nature.
The circumstances surrounding the fire also support the jury's finding that King set the
fire. On the morning of the fire, King told Baker and Henry that his son was sleeping in the
mobile home and that he was going to the tire shop. While King was gone, Baker and Henry
saw smoke and soon found that the mobile home was on fire. Both men found King's behavior
that day to be inconsistent with what they would expect from a father under those circumstances,
and they found him to be uncooperative in trying to help them save his son from the burning
home. For example, when they repeatedly asked King where his son was in the mobile home, he
simply pointed in the general direction of the flames, and he was slow in telling them Son's
name. When Baker asked King if he had a water hydrant, or a chainsaw or ax so they could cut
through the wall, King replied simply, "No, I don't have anything." Although King pointlessly
rammed his truck into the frame of the home, he was not saying anything; nor was he screaming,
15
yelling, or crying. Henry observed that King did not begin to cry until Deputy Hamilton arrived.
Baker also noticed that King became more emotional only after Hamilton arrived. Additionally,
after the fire, King was overheard by a friend stating that he needed to get rid of two gas cans.
The foregoing evidence is sufficient to support the jury's finding that the fire was
intentionally set and that King was the one who set it. King had both the opportunity and a
motive to do so, in that Son's body was in the mobile home when it burned and the evidence
shows that he was dead before the fire started. Thus, there was sufficient evidence for a
reasonable juror to find King guilty of second-degree arson. Point denied.
Point IV: Instructional Error
In Point IV, King argues that the circuit court plainly erred in submitting the verdict
director for first-degree child abuse (Instruction No. 8), in that the State presented evidence of
several instances of alleged abuse but the verdict director failed to specify which act constituted
the crime charged or to instruct the jurors that they must unanimously agree on the same act,
thereby allowing the possibility that the jurors failed to unanimously find guilt as to the same act.
King concedes that he did not object to the instruction and thus failed to preserve this
claim for review. Issues that were not preserved may be reviewed only for plain error under
Rule 30.20. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). Rule 30.20 authorizes this
Court, in its discretion, to review "plain errors affecting substantial rights . . . when the court
finds that manifest injustice or miscarriage of justice has resulted therefrom." Our Supreme
Court has established a threshold review to determine if a court should exercise its discretion to
entertain a Rule 30.20 review of a claimed plain error. First, we determine whether or not the
claimed error "facially establishes substantial grounds for believing that 'manifest injustice or
miscarriage of justice has resulted[.]"' State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995)
16
(quoting Rule 30.20). If not, we should not exercise our discretion to conduct plain error review.
If, however, we conclude that we have passed this threshold, we may proceed to review the claim
under a two-step process pursuant to Rule 30.20. In the first step, we decide whether plain error
has, in fact, occurred. Baumruk, 280 S.W.3d at 607. "All prejudicial error, however, is not plain
error, and plain errors are those which are evident, obvious and clear." Id. In the absence of
evident, obvious, and clear error, we should not proceed further with our plain error review. If,
however, we find plain error, we must continue to the second step to consider whether or not a
miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Id. at 607-
08. Plain error can serve as the basis for granting a new trial on direct appeal only if the error
was outcome determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006).
Here, the verdict director as to child abuse, Instruction No. 8, read, in pertinent part:
As to Count III, if you find and believe from the evidence beyond a reasonable
doubt:
First, that on or between November 16, 2011 and January 10, 2012, . . . the
defendant struck [Son] with such repetition and force as to leave
bruises and abrasions on said child, and
Second, that in so doing, defendant inflicted cruel and inhuman
punishment upon [Son], and
Third, that [Son] was then less than seventeen years old, and
Fourth, that defendant knew his conduct was inflicting cruel and inhuman
punishment upon a child less than seventeen years old,
Then you will find the defendant guilty under Count III of abuse of a child.
Relying on State v. Celis-Garcia, 344 S.W.3d 150, 152 (Mo. banc 2011), King contends that this
instruction erroneously failed to require the jury to unanimously agree upon which act of abuse
King committed. In Celis-Garcia, the State presented evidence that the defendant committed
17
multiple criminal acts, similar in nature, against the same victim, but the verdict directors failed
to differentiate between those acts so as to ensure that the jury unanimously convicted the
defendant of the same act or acts. Id. at 156. There, the Supreme Court found plain error and
reversed the defendant's convictions because it was "impossible to determine whether the jury
unanimously agreed on any one of [the] separate incidents" such that "the verdict directors
violated [the defendant's] constitutional right to a unanimous jury verdict." Id. at 158.
We find this case to be more akin to State v. Miner, 363 S.W.3d 145 (Mo. App. 2012),
than to Celis-Garcia. In Miner, the defendant was charged with aggravated stalking based on the
allegation that between two specific dates, he purposely harassed the victim "by repeatedly
calling her and going to her home." Id. at 148. The Miner court explained that
since Miner's threats constituted a course of conduct over the charged period of
time, jurors needed only to agree unanimously over the period of time specified in
the verdict director that his threats caused the victim to fear for her safety, rather
than whether one specific threat did so. Thus, unlike in Celis-Garcia, here there
is no risk that Miner's right to a unanimous jury was violated.
Id. The same is true here. As in Miner, the evidence in this case revealed a pattern of abuse, and
it was this pattern of abuse that the jury had to find–i.e., repetitive strikes resulting in bruises and
abrasions–not a single injury. By unanimously finding "repetition," it is apparent that the jurors
agreed that King was guilty of the various acts committed during the specified dates.
In any event, instructional error rarely constitutes plain error. State v. Smith, 422 S.W.3d
411, 418 (Mo. App. 2013). For instructional error to constitute plain error, the circuit court must
have "so misdirected or failed to instruct the jury that the error affected the jury's verdict." State
v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010). The outcome of plain error review depends on
the specific facts and circumstances of each case. State v. Ralston, 400 S.W.3d 511, 520 (Mo.
App. 2013). In Celis-Garcia, the Court found prejudice for purposes of plain error review
18
because the defendant "relied on evidentiary inconsistencies and factual improbabilities
respecting each specific allegation [of abuse]." 344 S.W.3d at 159. As explained in State v.
LeSieur, 361 S.W.3d 458, 465 (Mo. App. 2012):
Celis-Garcia makes clear that, to establish manifest injustice based on an
insufficiently specific verdict director in a "multiple acts" case, the defendant
must have mounted an incident-specific defense, which would have given the jury
a basis to distinguish among the various incidents mentioned in the evidence.
Celis-Garcia suggests, however, that where the defendant mounts "a unitary defense" to all the
alleged actions, instead of a defense which distinguishes among the various acts, manifest
injustice generally does not exist. See id. (citing Celis-Garcia, 344 S.W.3d at 159). Here, King's
defense was the same for all of the alleged incidents of abuse: he denied that he ever abused his
son. Thus, under Celis-Garcia, King's "unitary defense" makes it unlikely that individual jurors
convicted him based on different acts. See id. (citing Celis-Garcia, 344 S.W.3d at 159). For that
reason, we cannot find "that the verdict directors misdirected the jury in a way that affected the
verdict, thereby resulting in manifest injustice." Id. (quoting Celis-Garcia, 344 S.W.3d at 159).
In sum, King fails to facially establish substantial grounds for believing that a manifest
injustice resulted from the giving of Instruction No. 8, the verdict director for child abuse. Point
denied.
Points V and VI: Rulings on Admission or Exclusion of Evidence
In Points V and VI, King contends that the circuit court erred in ruling on the admission
and exclusion of certain evidence. "A trial court has broad discretion to admit or exclude
evidence at trial," and its decision will be reversed only for a clear abuse of discretion. State v.
Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). A court abuses its discretion when its ruling "is
clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of
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careful consideration." Id. There is no abuse of discretion if reasonable persons can disagree
about the propriety of the decision. State v. Raines, 118 S.W.3d 205, 209 (Mo. App. 2003).
In Point V, King argues that the circuit court abused its discretion in overruling his
objections to the toxicologist's testimony that the carbon monoxide levels in Son's blood would
not have resulted in death. He contends that there was "an inadequate foundation for the chain of
custody of the critical blood evidence," in that the State failed to prove that the blood sample
tested was taken from the iliac artery. King claims that without this evidence, the jury would
have had a reasonable doubt about whether Son perished prior to the fire.
The gist of King's complaint here is that Dr. Christopher Long's testimony about the
carbon monoxide levels in Son's blood should not have been admitted because the evidence
failed to establish that the blood he tested came from an iliac blood vessel5 (as opposed to the
heart). The evidence at trial showed that Shawn Parcells and Nate Pryer assisted Dr. Norton at
the autopsy. Parcells testified that Dr. Norton had previously instructed him that blood samples
should be taken from a periphery vein or artery (such as from a leg or arm), and not from the
heart. Parcells testified that he saw Dr. Norton draw the blood from the right iliac artery or vein
and that this blood was sent to Dr. Long for testing. Because that sample was not very big, they
also took a sample of clotted blood from the heart.
Pryer testified that he packaged all the samples collected using a prepackaged kit. He
also testified that he saw Dr. Norton draw blood from the iliac artery with a syringe and put it
into a bottle. Pryer then sealed and labeled that bottle. Pryer identified that bottle of blood at
trial. Blood clots from the heart were put into a separate bottle and sealed, he said. Pryer stated
5
Dr. Norton explained that the iliac blood vessels are those that run from the pelvic area down into the legs.
20
that the sealed bottles were placed in biohazard bags, then put into a box sealed with evidence
tape and sent to Dr. Long in St. Louis via a FedEx clinical pack.
Dr. Long testified that he received the items from FedEx on January 13, 2012. Before
Dr. Long could testify about the toxicology results, defense counsel objected on the basis that a
proper chain of custody had not been established. Defense counsel argued that Dr. Norton had
not yet testified that he was the one who drew the blood and noted that, at his deposition, Dr.
Norton never mentioned getting blood from an iliac vessel. The prosecutor responded that two
witnesses had testified that Dr. Norton drew the blood from the iliac vein or artery and that he
expected Dr. Norton to say the same. The court overruled the objection. Dr. Long thereafter
testified that he tested the iliac blood sample and found that its carbon monoxide content was
within the normal range, indicating that the victim had not died of smoke inhalation.
Dr. Norton testified that his statement in the deposition that the blood was drawn from the
heart was not correct. He stated that his usual practice is to get blood from the iliac vessels and
that either he or his assistant would do the blood draw. Dr. Norton did not have an independent
recollection as to who drew the blood in this case, but he confirmed that the blood came from the
iliac vessels. On cross-examination, Dr. Norton agreed that both his diagrams and the final
autopsy report indicated that the blood came from the heart. Defense counsel then renewed his
objection to the toxicology results. The court overruled the objection, finding that the testimony
of the other witnesses established that the blood was drawn from the iliac region. The court did
not err in overruling the objection. Whether a sufficient foundation has been established for an
exhibit is a decision within the circuit court's discretion. State v. Minner, 256 S.W.3d 92, 97
(Mo. banc 2008). The determination as to whether a sufficient chain of custody has been
established for an exhibit also lies within the court's sound discretion. State v. Link, 25 S.W.3d
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136, 146 (Mo. banc 2000). Here, the testimony presented was sufficient to lay a foundation as to
where the blood came from and to establish a chain of custody for the blood tested by Dr. Long.
King claims, nevertheless, that the testimony of Parcells was "inherently unreliable" due
to "overwhelming evidence" that he has engaged in unethical conduct in other autopsies and that
Pryer's testimony was unreliable because he works for Parcells. The only evidence at trial
related to this issue was defense counsel's cross-examination of Parcells as to whether he had
once signed a doctor's name in another criminal case. Parcells claimed that he had no knowledge
of that. Thus, the jury had the opportunity to assess Parcells' credibility on that issue and to
factor it into their deliberations. Credibility determinations are for the circuit court and the jury,
and we defer to those findings. See State v. Mignone, 411 S.W.3d 361, 363 (Mo. App. 2013).
In any event, we review "for prejudice, not mere error, and will reverse only if the error
was so prejudicial that it deprived the defendant of a fair trial." Forrest, 183 S.W.3d at 223-24.
Thus, an evidentiary error would require reversal only if it were prejudicial to King. See Nash,
339 S.W.3d at 515. "An error is not prejudicial if there is no reasonable probability that it
affected the outcome of the trial." Id. King cannot show that this evidence, even if erroneously
admitted, affected the outcome of the trial. The toxicology report was not the sole evidence
establishing that Son did not die in the fire. The State otherwise established that fact via the
(perhaps even more persuasive) evidence that no soot was found in Son's trachea or lungs.
In sum, a sufficient foundation and chain of custody was established for the blood
evidence, and the circuit court did not err in admitting Dr. Long's testimony. Point denied.
In his final Point, King argues that the circuit court abused its discretion in excluding
evidence of Mira Huffman's statements to Naomi Hilliard on the day of the fire. King contends
22
that this evidence established a "direct link" between Huffman and the fire and death of Son and,
thus, was necessary to his defense.
King presented the testimony of Hilliard in an offer of proof. Hilliard testified that on
January 11, 2012, she and Huffman were sharing a house in Bethany. Hilliard stated that she
received phone calls from Huffman that morning, which she did not answer, and that the first one
was at 6:50 a.m. She said that Huffman later came into her bedroom and awoke her, screaming
that she had been out to King's, that her son was on fire, and that King had killed him. Hilliard
believed that this conversation occurred at about 7:00 a.m. Hilliard stated that they then went
downstairs, and the house was full of people. On cross-examination, Hilliard acknowledged that
the phone calls she had received were on her cell phone, and she was confident that Huffman did
not come into her room until after the phone calls. Phone records revealed that the phone calls
from Huffman to Hilliard's cell phone did not occur until 7:35 a.m. Under questioning by the
court, Hilliard stated that it was Huffman's family members who were in the house when they
went downstairs and that they all knew about the fire and about what had happened to Son. The
circuit court sustained the State's objection, finding that there was no direct evidence tying
Huffman to the crimes and that King's proffered evidence was speculation and conjecture.
"Evidence that another person had an opportunity or motive for committing the crime for
which the defendant is being tried is not admissible without proof that such other person
committed some act directly connecting him with the crime." State v. Schaal, 806 S.W.2d 659,
669 (Mo. banc 1991). "Disconnected and remote acts, outside the crime itself cannot be
separately proved for such purpose; and evidence which can have no other effect than to cast a
bare suspicion on another, or to raise a conjectural inference as to the commission of the crime
by another, is not admissible." Nash, 339 S.W.3d at 513.
23
King's proffered evidence did not establish a direct connection between Huffman and the
arson or the murder. Huffman arrived on the scene well after the fire was set, and there was no
evidence that she was at the scene prior to the fire being started. Moreover, there is no evidence
that Huffman had access to Son at the time of his death and, thus, no evidence to tie her to his
murder. Because King's offer of proof did not meet the standards of the "direct connection rule,"
the circuit court did not abuse its discretion in excluding it. Point denied.
Conclusion
Based on the foregoing, we affirm King's convictions and sentences.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Judge
All concur.
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