State v. Clark

908 S.W.2d 764, 1995 Mo. App. LEXIS 1495, 1995 WL 507420
Missouri Court of Appeals·Decided August 29, 1995·No. Nos. WD 48187, 50052·Published·Cited by 1 cases

Opinion

SPINDEN, Judge.

A jury found Timothy Clark guilty of assaulting a three-month-old Kansas City boy in July 1991. He complains that the circuit court erroneously instructed the jury concerning which of his prior convictions it could consider. He also contends that the state did not present sufficient evidence to support the jury’s verdict, and he appeals the denial of his motion for post-conviction relief based on ineffective assistance of counsel. We affirm.

Clark’s conviction resulted from severe injuries suffered by his girlfriend’s infant son. Clark was watching the child on July 3, 1991, while the mother was away running errands. When the mother called to check on the boy, she heard him crying. Clark told her that the boy had rolled off the bed onto the carpeted concrete floor where he landed on his head. He said that the boy had “the wind knocked out of him” but did not seem to be hurt. The mother replied that a nurse who visited the home to monitor the boy’s health problems would be arriving later that afternoon and instructed Clark to tell her of the incident.

When the nurse arrived at 3:45 P.M., Clark told her that the boy had fallen off the bed to the floor. He said that the child had turned white and had stopped breathing. During the nurse’s examination of the boy, she noticed a bluish-purple bruise on his left ear and large swelling on the left side of his head. The boy arched his back and cried in a high pitch. The nurse believed that the cry’s pitch indicated intracranial pressure. She called for an ambulance, and emergency personnel transported the boy to Truman Medical Center East. Clark told a hospital nurse that he feared being accused of child abuse.

A physician at Truman ordered the boy’s transfer to Children’s Mercy Hospital where a doctor found that he had a “wandering gaze” and was not “appropriately oriented” for his age. The doctor found a swollen, bluish bruised area on the left side of his head, and red and blue bruising on the inside of his left ear, on one of his eyelids, and on the bridge of his nose. The boy also had bluish-purple bruises on his abdomen, buttocks, and around his penis. He had red and blue pinpoint puncture marks on the soles of his feet.

The doctor diagnosed the boy as suffering a depressed skull fracture on the left side of his head and a subdural hematoma which covered his brain’s surface. He also had brain swelling and subarachnoid bleeding apparently caused by a significant blow to the head.

The boy remained in the hospital for 18 days. Because of a period of oxygen deprivation to the brain, some of the cells on the right side of his brain died. The brain damage caused him to have seizures on the left side of his body during his first week in the hospital, and scarring on the right side of his brain which resulted in an ongoing tightening and contraction of his left arm.

[767] At trial, Clark testified that the boy fell off of a full-sized bed while Clark was in the bathroom. The mother testified that she did not see any injuries to the boy when she left the house that day and that she had not struck or injured her son. She also testified that she had never seen the boy roll over before the day of the fall. Although the state charged Clark with assault in the first degree and sexual abuse in the first degree, the jury found him guilty of only the assault charge.

In his first point on appeal, Clark argues that the circuit court erred in giving the jury instructions concerning which of Clark’s prior convictions it could consider in determining Clark’s credibility. The circuit court gave the jury Instruction No. 11 modeled after MAI-CR 3d 310.10 which said:

If you find and believe from the evidence that defendant was convicted of the offenses of Burglary, Theft, Forgery, two felony and two misdemeanor cases of Giving a Worthless Cheek, False Certification, and Falsely Reporting a Crime, you may consider that evidence for the sole purpose of deciding the believability of the defendant and the weight to be given to his testimony and for no other purpose. You must not consider such previous convictions as any evidence that the defendant is guilty of any offense for which he is now on trial.

The circuit court also submitted Instruction No. 12 modeled after MAI-CR 3d 310.12 which said:

If you find and believe from the evidence that the defendant was involved in offenses other than the one for which he is now on trial, and other than the offenses mentioned in Instruction No. 11, you may consider that evidence on the issues of intent and absence of mistake or accident of the defendant. You may not consider such evidence for any other purpose.

Clark argues that the circuit court’s submitting both instructions was contrary to the “Notes on Use,” and its using MAI-CR 3d 310.12 improperly permitted the jury to consider Clark’s prior convictions in determining whether he had the requisite mental state for the offenses.

Clark concedes that he did not preserve this point for our review but asks us to review the issue as “plain error” pursuant to Rule 30.20. “[Ujnless a claim of plain error facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resulted,’ this Court will decline to exercise its discretion to review for plain error under Rule 30.20.” State of Missouri v. Vernon Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (quoting Rule 30.20). Considering the notes accompanying MAI-CR 3d 310.10 specifically authorizing submitting both 310.10 and 310.12 in the situation before the circuit court in Clark’s case, we do not discern plain error and, therefore, do not review the issue. See MAI-CR 3d 310.10, “Notes on Use” 3(g).

Clark next complains that the state failed to prove beyond a reasonable doubt that he caused the boy’s injuries. We disagree. The mother testified that the injuries had not occurred before she left her son in Clark’s care. She testified that she did not cause them. The nurse found the bruises to the boy’s head when she examined the child that afternoon and Clark reported to her that they occurred while the boy was in his care. This was substantial evidence from which a reasonable jury could find Clark guilty beyond a reasonable doubt. Clark’s point is without merit.

Finally, Clark contends that the court erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Clark argues that his trial counsel was ineffective in three ways: (1) by failing to investigate and obtain copies of the boy’s medical records; (2) by failing to secure expert medical testimony to challenge the state’s expert testimony; and (3) by not objecting to the circuit court’s submitting Instructions No. 11 and No. 12.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Clark, 908 S.W.2d 764, 1995 Mo. App. LEXIS 1495, 1995 WL 507420 (Mo. Ct. App. 1995).

908 S.W.2d 764 (State v. Clark) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Halter v. Lewis
E.D. Missouri, 2023