State v. Eisele

414 S.W.3d 507, 2013 WL 4850527, 2013 Mo. App. LEXIS 957
CourtMissouri Court of Appeals
DecidedAugust 20, 2013
DocketNo. ED 98688
StatusPublished
Cited by8 cases

This text of 414 S.W.3d 507 (State v. Eisele) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Eisele, 414 S.W.3d 507, 2013 WL 4850527, 2013 Mo. App. LEXIS 957 (Mo. Ct. App. 2013).

Opinion

CLIFFORD H. AHRENS, Judge.

Amanda Eisele appeals from the judgment of the trial court entered after a jury convicted her of assault in the second degree in violation of section 565.060 RSMo. 2000.1 Finding no error, we affirm.

Viewed in the light most favorable to the judgment, the evidence is as follows. J.G. was born on March 15, 2010, to Toby G. (“Father”) and Melissa G. (“Mother”). Mother and Father were seeking a part-time nanny for J.G., and found Eisele, a nineteen year old college student, on a website for caregivers. Eisele worked for Mother and Father from May 12, 2010 until June 18, 2010, typically taking care of J.G. three days a week from approximately 11:30 a.m., when Mother went to work, until roughly 4:30 p.m. when typically Father returned home from work. J.G.’s visits to the office of his regular pediatrician, Dr. Isabel Fernandez-Holtzman (“Pediatrician”) following birth until May 12, 2010 were uneventful. Mother noticed that Ei-sele’s enthusiasm for the job quickly ebbed and that she had little interest in the list of instructions that Mother had prepared. J.G.’s maternal grandmother, Betty L. (“Grandmother”) also babysat for J.G. every Tuesday, and sometimes other days as well. Prior to the end of May 2010, J.G. was described as a “good baby” who seldom cried.

On Friday May 28, 2010, Mother returned home, with J.G. asleep in a swing, wrapped with a blanket. Eisele told Mother that he was fine and left. When J.G. woke up, Mother and her sister-in-law started to change him, and noticed a bruise-like mark on J.G.’s left arm that had not been there when Mother left J.G. in Eisele’s care that morning. Father also noticed the mark. J.G. was very fussy and “inconsolable” throughout the Memorial Day weekend, relaxing only when Father held him in a manner that reduced pressure on J.G.’s back. On June 1, 2010, Grandmother babysat for J.G., and noticed that he was extremely fussy, and acting as if he were in pain, which she thought was due to a stomach ache. Trying to burp J.G. caused him to scream and cry, and rubbing his back also irritated him. Grandmother called Mother to tell her that something was wrong with J.G., as he had been crying all day. Mother replied that he had been like that all weekend.

On June 2, 2010, Eisele took care of J.G. Mother asked her about the mark on his arm from the previous Friday, and Eisele did not recall seeing a scratch on him. Mother asked if J.G. had gotten his arm stuck in something, as the mark looked more like a “pinch,” and Eisele told her no. Thereafter J.G. was fussy in the mornings, but calm when Father held him, but Mother and Father decided to take him to Pediatrician. Father took J.G. to Pediatrician’s office on June 4, 2010. Father told the nurse practitioner that J.G. was fussy [511]*511and “grunting.” J.G. was x-rayed and diagnosed with possible early pneumonia. He was prescribed antibiotics. A later, careful reexamination of the x-ray revealed rib fractures, but at the time these were unnoticed. On June 7, 2010, J.G.’s breathing was rapid and he was grunting as he breathed. In addition he was vomiting and having diarrhea. J.G. was taken to Pediatrician’s office, and the nurse practitioner sent J.G. and his parents to the emergency room at Children’s Hospital to check for a possible bowel problem. X-rays were taken that ruled out an intestinal issue. The ER staff told the parents to have J.G. finish taking the antibiotics for possible pneumonia and to follow up with his doctor. Subsequent re-examination of the x-rays taken on June 7 showed evidence of rib fractures, but again this was not perceived at the time of the ER visit. Mother called the ER physician the following day to report that J.G. was still breathing fast and heavy and crying a lot, but that he seemed better.

On June 16, 2010, Mother took J.G. back to Pediatrician’s office. Mother told the doctor that J.G. continued to be very fussy, and was spitting up. However, J.G.’s lungs sounded clear, and Pediatrician thought that the presumed pneumonia was improving. Pediatrician put J.G. on Zan-tac for possible acid reflux due to the spitting up. She did examine J.G.’s extremities during this visit, pressing on the arms and legs and saw no evidence of fractures.2

Mother and Eisele continued to have friction. Mother perceived an “attitude” from Eisele whenever she tried to discuss J.G. with her. She noticed that J.G. would start to scream when Eisele would pick him up in the morning. When asked, Ei-sele told Mother that J.G. “pretty much” cried all the time when she was there, but blamed it on Mother’s presence. Mother was also disturbed by Eisele’s language when discussing the latter’s step-mother. Mother and Father decided to terminate Eisele, and on June 18, 2010, Father told her that her services were no longer needed because his work hours were being cut. This was untrue, but Father wanted to spare Eisele’s feelings, and also offered her a bonus termination check that she never picked up. Thereafter J.G. was cared for by Mother, Father, Grandmother, and Mother’s sister.

A few days after discharging Eisele, Father noticed that J.G. was using his left arm noticeably more than his right arm. Mother palpated his right arm, but J.G. did not react. Although Mother thought that his right arm was “very floppy,” she and Father did nothing at the time because J.G. was not crying about it. They noticed that J.G.’s use of his right arm seemed to improve over the following several days.

Mother and Father took J.G. to Pediatrician’s office on June 28, 2010, to examine a skin problem prior to going on a family vacation. Father told the nurse practitioner about J.G.’s arm problem. She palpated his right arm and got a pain response, prompting an x-ray of the arm. This June 28th x-ray revealed that the major bones in J.G;’s right forearm were broken and in the process of healing. Pediatrician also thought that another break had already healed. Based on her positive experiences with Mother and Father, Pediatrician allowed them to take J.G. home to take him to an orthopedic center the next day for further examination, rather than [512]*512have J.G. sent directly to the hospital by ambulance due to suspected child abuse. On June 29, 2010, Mother took J.G. to an orthopedic center for a full skeletal survey x-ray. The June 29th x-ray revealed multiple fractures, including multiple broken ribs on both sides of J.G.’s ribcage, the two right forearm fractures, a fracture of the left forearm, and a fracture of the left leg tibia. All of the fractures save for the last seemed to be in various stages of healing. Given J.G.’s age, the fractures had to be non-accidental inflicted injuries. J.G. was admitted to Children’s Hospital for several days.

Detective Harolton Clayborn of the St. Louis County Police Department, Child Abuse Unit, interviewed Mother and Father separately, giving each Miranda warnings, which Mother and Father respectively waived. He talked with each parent for over an hour, and found them cooperative and concerned. Both denied injuring J.G., and provided Det. Clayborn with Eisele’s name. On July 2, 2010, Detective Emily Mancuso of the St. Louis County Police Department and another officer picked Eisele up at her home and brought her to the police station for questioning. Det. Clayborn led the interview of Eisele, with Det. Mancuso present to provide “a familiar face” to Eisele. Both officers were in plain clothes with no weapons. Det. Clayborn gave Eisele a warning and waiver form, read her the Miranda rights, one by one, and had her initial each right after he read to acknowledge that she understood each right.

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Cite This Page — Counsel Stack

Bluebook (online)
414 S.W.3d 507, 2013 WL 4850527, 2013 Mo. App. LEXIS 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eisele-moctapp-2013.