Alyssia Kirby-Snow v. State of Arkansas

2020 Ark. App. 474, 609 S.W.3d 686

• Court: Court of Appeals of Arkansas
• Decided: October 21, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 474 Reason: I attest to the accuracy ARKANSAS COURT OF APPEALS and integrity of this document Date: 2021-07-15 11:57:40 Foxit PhantomPDF Version: DIVISION III 9.7.5 No. CR-19-579

Opinion Delivered: October 21, 2020 ALYSSIA KIRBY-SNOW APPELLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CR-16-314] V. HONORABLE GORDON WEBB, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

Alyssia Kirby-Snow appeals her convictions of permitting the abuse of a minor, a

Class B felony, and endangering the welfare of a minor in the first degree, a Class D felony.1

She was sentenced to a total of twenty-six years’ imprisonment. On appeal, Kirby-Snow

challenges the sufficiency of the evidence alleging that the jury had to resort to speculation

and conjecture. For the following reasons, we affirm.

Kirby-Snow’s convictions arise from the abuse of her three-week-old infant, A.S.,

resulting in the child’s broken clavicle, severe brain injuries, and seizures. Kirby-Snow’s

then boyfriend and later husband, Jonathan Snow, was also charged with battery in the first

degree and endangering the welfare of a minor in the third degree. This court reversed and

1 She was acquitted of battery in the first degree. dismissed his battery conviction but affirmed the endangering-the-welfare-of-a-child

conviction in Snow v. State, 2018 Ark. App. 612, 568 S.W.2d 290.

Kirby-Snow’s three-day jury trial began on January 30, 2018. The following

evidence was adduced at trial. On February 25, 2016, Mountain Home Police Department

investigator Jay Volkman and Arkansas State Police special agent Becky Vacco interviewed

twenty-nine-year-old Kirby-Snow and eighteen-year-old Jonathan Snow at the apartment

home where the two lived with A.S. and two of Kirby-Snow’s three other children. Kirby-

Snow told the investigators that she was still trying to figure out what happened to A.S.

because when she looked up his symptoms online, they all seemed to be normal newborn

behaviors. Kirby-Snow told them that she saw A.S. have an “episode” for the first time on

Saturday, February 20 between four and five in the evening. She said that at the time, she

did not know that these “little fits” he was having were seizures, and she thought that when

she took him to the doctor on Monday, the worst-case scenario was that he would be

diagnosed with jaundice.

Kirby-Snow described A.S.’s fits as his stiffening out his body, putting his hands up,

and shaking, or he would grab and pinch his face. She attributed his bruises to his pinching

his face, and she said she literally had to pry back his little fingers. She also said that the

scratches on his face and chest occurred because his nails were long. She told investigators

that A.S. was bruised on the temple on Friday, February 19 when the seatbelt on the car

seat hit him in the head. She had no explanation for A.S.’s broken clavicle, though she said

sometimes one of the children would carry him and might have dropped him.

2 Kirby-Snow told Vacco that she and Snow began to get concerned about A.S.

Saturday evening into Sunday. She told Volkman that she waited to take A.S. for medical

care on Monday, February 22 because she called the emergency room Sunday night and the

recording said to call back during business hours or to call an ambulance if there was an

emergency.

Dr. Michael Adkins, A.S.’s pediatrician, had treated A.S. since his birth on January

27, 2016. He saw A.S. for an office visit on February 4 and found A.S. to be well with no

acute issues on that date, though he was mildly jaundiced. On Monday, February 22, Kirby-

Snow made an appointment with Dr. Adkins for one o’clock. At the appointment, Kirby-

Snow told the doctor that she was only concerned about jaundice and that A.S. had not

eaten in the past two days. A.S. was not jaundiced, but he exhibited many signs of life-

threatening injury, including a broken collarbone and significant bruises, and he was having

a seizure.

Dr. Adkins sent A.S. to the local emergency room for treatment and called the

Arkansas Department of Human Services (DHS) regarding suspected child abuse. When Dr.

Adkins told Kirby-Snow that he was notifying DHS, she simply responded, “Okay.” When

he asked her to explain the bruises, she told him the child had been hit with a seatbelt when

he was being put into the car. He asked Kirby-Snow why she did not seek medical help

sooner, and she said, “I don’t know.”

Amber Sanders, a registered nurse in Dr. Adkins’s office, testified that Kirby-Snow

normally was kind of bubbly and talkative about life in general but that she did not say much

3 at the visit on February 22, and she did not make a lot of eye contact. When asked to explain

the bruising on his face, Kirby-Snow said A.S. had pinched himself.

A.S. was seen at the local hospital emergency room that evening and then airlifted

to Arkansas Children’s Hospital (ACH) that night. Dr. Karen Farst, a pediatrician board

certified in general pediatrics and child-abuse pediatrics, testified that she began treating him

when he arrived at ACH. A.S. was in critical condition, breathing only with the help of a

ventilator because of his head injury and the sedating seizure medication he had been given,

and he was not responsive to his environment. He had quite a bit of swelling of his brain

that was pushing down on his brainstem. He had bruises, and several leads and monitors

were attached to his body. He was at risk of death and was on life support.

A.S. was connected to an EEG to monitor for seizure activity. He had a tube running

into his stomach to draw off air and gastric juices so that he would not burp those up into

his lungs while he was on the ventilator. He had a prominent bruise that protruded a bit on

the right side of his forehead. His eyes were a little puffy, and his left eye had quite a bit of

red bruising around it. He had abnormal brainwave activity, indicating swelling, bleeding,

and abnormal seizure activity.

Dr. Farst testified that swelling of the brain could be caused by direct trauma, such

as “pretty bad blows,” a violent shaking injury, or other things that would deprive the brain

of oxygen and blood flow, such as if the heart stops beating or breathing stops. A.S. also had

bruising around his left nipple and red bruising in a little more of a linear pattern that went

down his left chest wall and onto the left side of his abdomen. Dr. Farst could not tell if the

4 bruises all occurred at the same time or at different times. A.S. also had a broken collarbone

on his right side.

Dr. Farst testified that it is very uncommon for an infant to have a bone break because

infant bones are more pliable, bending before they break, and because infants are not active

enough to cause fractures. She also was sure that the fracture did not occur during birth

because the break was too fresh and showed no sign of any healing. A.S. was underweight,

especially compared to his birth weight. He had a curved bruise and abrasion under his right

jawline.

Dr. Farst testified that it was not possible for A.S. to have inflicted this injury upon

himself by pinching his skin and that the injury was much bigger than a fingernail scratch

from a baby would be. A.S. had a couple of other injuries in his neck area. Dr. Farst said

that A.S. would have died if he had not received medical care. The injuries he had could

not be self-inflicted or obtained by him moving about by himself. The injuries were “not

anything that would even just happen from routine handling if you dropped the baby or if

they were to scootch off the couch. These [were] really unusual and—and just the whole

constellation of injury was a very high force injury[.]”

Dr. Farst diagnosed the injuries as child abuse by a larger person, not by a five-year-

old or a three-year-old picking A.S. up and dropping him on the floor. She also said he

suffered secondary trauma from having seizures for such an extended period of time without

receiving medical care. Dr. Farst said that if A.S. had been taken to the emergency room

when he had the first seizure, his outcome likely would not have been as severe because a

lot of his brain injury was a result of swelling. She also said that A.S. did not suffer from

5 jaundice. A.S. remained hospitalized for six weeks, and Dr. Farst explained at length the

serious permanent repercussions of his injuries.

Snow’s cellphone contained videos of A.S. having a seizure and his condition

deteriorating. The videos, recorded in the early morning hours of February 22, were played

for the jury. The videos were narrated by Snow, who was with A.S. and who gave an

account of A.S.’s activity over the prior three hours. In the videos, Snow described the

child’s alarming behavior, including hyperventilating at times, having spells of stiffening his

body, throwing up his food, seeming to be congested, having a respiratory problem, passing

in and out of consciousness despite having slept all day, and refusing to suck on his pacifier.

Snow said that the child’s behavior was “freaking [him] out.” He also referred to the

child as “freaking out” when he had a fit and described his behavior as “crazy.” At one

point, he said he tried to awaken Kirby-Snow to show her the video, but she was passed

out. He also stated that the seizures were happening closer together.

Dr. Farst testified that the videos found on Snow’s phone showed abnormal eye

movements and body movements characteristic of a seizure. The videos showed A.S.’s

hands clenched so tightly that an adult could not unclench them, another characteristic of

seizure activity.

Joseph Elders, a friend of both Snow and Kirby-Snow, testified that he had visited

their home sometime during the weekend of February 12–14, 2016, to meet A.S. for the

first time. When he saw A.S., his eyes were moving side to side rapidly and he looked like

he was having an epileptic seizure. He told Kirby-Snow that he thought A.S. was having a

6 seizure, but she told him that most newborn’s eyes moved like that when they were

adjusting to light.

The Baxter County jury acquitted Kirby-Snow on the first-degree-battery charge

but convicted her of permitting the abuse of a minor and endangering the welfare of a

minor. This appeal challenging the sufficiency of the evidence is now properly before us.

When considering a challenge to the sufficiency of the evidence on appeal, our court

views the proof in the light most favorable to the State, considering only the evidence that

supports the verdict. E.g., Noble v. State, 2017 Ark. 142, at 2, 516 S.W.3d 727, 729. We

affirm if there is substantial evidence to support the conviction. E.g., id. Substantial evidence

is that which is of sufficient force and character to compel a conclusion beyond speculation

or conjecture. E.g., id. Circumstantial evidence may constitute substantial evidence to

support a conviction. E.g., Brunson v State, 368 Ark. 313, 316, 245 S.W.3d 132, 136 (2006).

Circumstantial evidence provides a basis to support a conviction if it is consistent with the

defendant’s guilt and inconsistent with any other reasonable conclusion. E.g., Howard v.

State, 358 Ark. 471, 484, 79 S.W.3d 273, 281 (2002). Whether the evidence does so is a

question of fact for the jury to determine. Id.

The fact-finder determines the weight of the evidence and the credibility of the

witnesses; the appellate court does not second-guess the fact-finder. E.g., Tryon v. State, 371

Ark. 25, 32, 263 S.W.3d 475, 481 (2007). “The jury may resolve questions of conflicting

testimony and inconsistent evidence and may choose to believe the State’s account of the

facts rather than the defendant’s.” Id. at 32, 263 S.W.3d at 481–82. “[A] jury need not lay

aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s

7 guilt from improbable explanations of incriminating conduct.” Holt v. State, 2009 Ark. 482,

at 5, 348 S.W.3d 562, 566.

Arkansas Code Annotated section 5-27-221(a) defines permitting abuse of a minor

as follows: “A person commits the offense of permitting abuse of a minor if, being a parent

. . . , [she] recklessly fails to take action to prevent the abuse of a minor.” Ark. Code Ann.

§ 5-27-221(a) (Repl. 2013). A “minor” is a person under eighteen, and “abuse” means

“sexual intercourse, deviate sexual activity, sexual contact, or causing physical injury, serious

physical injury, or death, which could be prosecuted as a delinquent or criminal act[.]” Ark.

Code Ann. § 5-27-221(d).

“A person acts recklessly with respect to attendant circumstances or as a result of [her]

conduct when the person consciously disregards a substantial and unjustifiable risk that the

attendant circumstances exist or the result will occur.” Ark. Code Ann. § 5-2-202(3)(A)

(Repl. 2013). “The risk must be of a nature and degree that disregard of the risk constitutes

a gross deviation from the standard of care that a reasonable person would observe in the

actor’s situation[.]” Ark. Code Ann. § 5-2-202(3)(B). Criminal intent can be inferred from

one’s behavior under the circumstances, and it is presumed that one intends the natural and

probable consequences of one’s acts. E.g., Harmon v. State, 340 Ark. 18, 26, 8 S.W.3d 472,

477 (2000). The fact-finder “may draw upon common knowledge and experience to infer

the defendant’s intent from the circumstances.” Id. at 27, 8 S.W.3d at 477.

Clearly, there was substantial evidence to support the conviction for permitting abuse

of a minor. A.S. was a normal and healthy baby on February 4, 2016, with only a mild case

of jaundice. As early as February 12–14, 2016, he appeared to a family friend to be having

8 a seizure, but when the friend told Kirby-Snow that A.S. was having a seizure, she brushed

it off as normal newborn behavior. The State argues that Kirby-Snow had given birth to

three other children prior to A.S. and had been a mother for ten years, so it was reasonable

for the jury to conclude that she should have known the difference between normal and

abnormal newborn behavior. We agree.

Kirby-Snow claimed that a seatbelt hit A.S. in the head on Friday, February 19, 2016,

causing the prominent injury to his forehead. However, Dr. Farst testified that A.S.’s injuries

resulted from child abuse. Kirby-Snow told investigators that A.S. began to have his “little

fits” on the afternoon of Saturday, February 20, and she apparently knew his condition was

such that she needed to get him medical attention because she called the hospital Sunday

night around midnight. Despite recognizing that A.S. needed medical attention, she

nonetheless claimed that she did not take him to the emergency room because she got a

recording and feared the staff would think she was overreacting.

We are not persuaded by Kirby-Snow’s argument that her conviction for permitting

the abuse of a minor is not supported by substantial evidence because Jonathan Snow’s first-

degree-battery conviction was reversed and dismissed on appeal for insufficient evidence.

She contends that “[t]here is no additional or different testimony herein that would or could

sustain” her conviction “in light of this Court’s findings and holdings in [Snow.]” This

argument does not entitle Kirby-Snow to any relief.

First, the argument is not preserved for appeal, as it was not made below. See, e.g.,

London v. State, 354 Ark. 313, 320, 125 S.W.3d 813, 817 (2003) (issues raised for the first

time on appeal, even constitutional ones, will not be considered because the trial court never

9 had an opportunity to rule on them). Second, the fact that Snow’s battery conviction was

reversed and dismissed does not mean that Kirby-Snow’s permitting-abuse conviction is

unsupported by the evidence. “In any prosecution for an offense in which the liability of

the defendant is based on conduct of another person, it is no defense that . . . [t]he other

person has not been charged with, prosecuted for, convicted of, or has been acquitted of

any offense or has been convicted of a different offense or degree of offense, based upon the

conduct in question[.]” Ark. Code Ann. § 5-2-405(2) (Repl. 2013). Our supreme court has

held that an appellate court’s dismissal of a conviction due to insufficiency of the evidence

is tantamount to an acquittal for purposes of this statute. Roleson v. State, 277 Ark. 148, 150,

153, 640 S.W.2d 113, 114, 115 (1982).

Kirby-Snow also argues that there is no evidence that she purposely engaged in

conduct creating a substantial risk of death or serious physical injury to A.S. A person

commits first-degree endangering the welfare of a minor “if, being a parent, . . . [she]

purposely [e]ngages in conduct creating a substantial risk of death or serious physical injury

to a minor.” Ark. Code Ann. § 5-27-205(a) (Repl. 2013). “A person acts purposely with

respect to [her] conduct or a result of [her] conduct when it is [her] conscious object to

engage in conduct of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1). The

term “conduct” is defined as “an act or omission and its accompanying mental state.” Ark.

Code Ann. § 5-2-201(3).

Kirby-Snow argues that there is no evidence that she knew of the serious concerns

for A.S.’s health until the morning of February 22, 2016, when she first saw the videos made

earlier that morning of A.S. having a seizure. However, the evidence shows that a family

10 friend told Kirby-Snow that A.S. was having a seizure as early as February 13, that she

thought he had received a blow to the head resulting in a serious bump on his forehead on

Friday, February 19, and that she told investigators that he was having “fits” as early as

Saturday evening, February 20. She thought his injuries were serious enough to call the

hospital twice late Sunday night, February 21, but she did not take him to the emergency

room at that time.

Instead, Kirby-Snow “passed out” and left A.S. in the care of his eighteen-year-old,

first-time father, who could not rouse her to help him care for A.S, who was obviously very

ill. Then, even after seeing the disturbing videos of A.S. taken early Monday morning,

Kirby-Snow failed to take A.S. to the emergency room. Instead, she did not get proper

medical care for A.S. until the one o’clock appointment on February 22. Dr. Farst testified

that the failure to seek immediate medical care for A.S. exacerbated his injuries, so Kirby-

Snow’s conduct not only placed A.S. at a substantial risk but also caused significant further

injury resulting in permanent brain damage.

Viewed in the light most favorable to the State, the testimony established substantial

evidence to support Kirby-Snow’s convictions. Accordingly, we affirm.

Affirmed.

SWITZER and BROWN, JJ., agree.

Hancock Law Firm, by: Charles D. Hancock, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.