State v. Onken

701 S.W.2d 518, 1985 Mo. App. LEXIS 4299
CourtMissouri Court of Appeals
DecidedOctober 22, 1985
DocketNo. WD 36198
StatusPublished
Cited by9 cases

This text of 701 S.W.2d 518 (State v. Onken) 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. Onken, 701 S.W.2d 518, 1985 Mo. App. LEXIS 4299 (Mo. Ct. App. 1985).

Opinion

KENNEDY, Judge.

Defendant was convicted upon a jury trial of second-degree murder and was sentenced to 35 years’ imprisonment. He appeals.

The background facts of the case are set out in State v. Onken, 660 S.W.2d 312 (Mo.App.1983), which is our decision in the appeal of defendant’s conviction in an earlier trial of the case. We reversed that conviction because of error in the admission in evidence of the results of a test of a bloodstain on defendant’s shorts. We held that the evidence did not establish the kind of procedure that was used for the blood analysis, nor that the procedure was established and accepted as reliable in the scientific community. Frye v. United States, 293 Fed. 1013, 1014 (D.C.Cir.1923).

I

We will take up first whether a submissible case was made. We hold the circumstantial evidence was sufficient to support the submission and the conviction.

The victim, Billie Newcomer, was a 19-month-old girl. She lived with her mother, Cheryl Newcomer, in Green City, Missouri, along with two older children of Cheryl Newcomer. Living in the house also was Ray Dean Onken, the defendant.

Cheryl discovered Billie’s body, cold and dead in her bed at 10:30 o’clock on a Sunday morning. There were bruises and lacerations on her body, including one laceration on the jaw which had cut through the muscle to the bone. The orifice of her [520]*520vagina was gaping open and the vagina was torn. The immediate cause of her death was later determined to have been a rupture of the heart, which would have required a blow or pressure sufficient to push the sternum almost to the backbone. The body was clothed in the shirt and socks in which she had been put to bed, but the training pants and plastic outer pants which she had worn had been removed.

On the day before the child’s death, Cheryl and the defendant, along with Billie and the defendant’s son Damien, had visited various points in their car. Damien, six, lived with his mother, formerly the wife of defendant, but was spending the weekend with defendant. During the course of the afternoon defendant had drunk some whiskey. At the defendant’s grandparents’ home, where they had eaten the evening meal, the defendant had slapped Billie for crying. Later Billie had begun to cry as they were driving. The defendant had stopped the car, had taken the child out and had spanked her.

After they arrived home that evening, Cheryl had put Billie and Damien in their beds in the bedroom and had herself retired. Cheryl’s two older children were spending the night with their grandparents. Cheryl was in some misery because of a tooth extraction, and had taken a pain pill before retirement. She had gone to sleep, leaving defendant up and awake.

At about 11:30 on that evening, two acquaintances of Cheryl and of the defendant, Ricky Sayer and Bryan Stroud, had come to the residence. Shortly after their arrival, Ricky and Bryan had gone to a liquor store and had stolen two fifths of whiskey and returned with it. The three of them — defendant and the two guests — had drunk whiskey and had played cards until 3:30 o’clock a.m. when Ricky and Bryan had left the residence.

Cheryl testified to a vague recollection of defendant’s coming to bed sometime during the night. She remembered the sound of pants striking the floor, and the weight of a person lying down beside her. She was next awakened at 6 o’clock a.m. by the sound of regurgitation in the bathroom. She went to the bathroom and found the defendant kneeling over the stool, naked except for his socks, vomiting into the stool. She gave the defendant a shove into the floor, and vomited herself. She attempted to get the defendant up and back to bed. She was disgusted with him, she testified, because he was drunk. He became agitated and she poured water on him. At length they both returned to their bed. Cheryl awakened again at 10:30 and it was then that she found Billie’s body.

According to the testimony of Rick Say-er, Billie had awakened from her sleep as the three had been playing cards and had begun to cry. The defendant had gone to the bedroom and brought her back to the kitchen where the card game was in progress, and had put her in a high chair. After a time he had asked her if she wanted Jo go back to bed. He had taken her from the high chair and put her on the floor. She had walked back to the bedroom.

In the few days following the child’s death defendant had two or three times said to Cheryl, speaking of Billie’s death, according to Cheryl’s testimony: “I don’t know. I can’t remember.” When he had been subpoenaed for the coroner’s inquest into the child’s death, he had said to Cheryl: “I guess we will find out tomorrow whether I did or not.” With reference to what he had done after Cheryl had gone to bed on Saturday night he had said to her that he must have been “awful drunk” because he couldn’t remember after the first few games of cards. After the inquest he had said to Cheryl: “I very possibly could have, I don’t know, I can’t remember.”

Laboratory tests conducted by the Missouri Highway Patrol laboratory indicated that a bloodstain found on defendant’s shorts matched the tiny victim’s blood in every point where a comparison could be made, and according to the chemist’s testimony the stain could have been made by her blood. One of defendant’s head hairs [521]*521was found in the vaginal area of the child’s body.

There was no evidence of any break-in or violence about the house, except upon the child’s body.

On this evidence, the jury returned a verdict of guilty. We find the circumstantial evidence to have been consistent within itself and consistent with a hypothesis of defendant’s guilt, and inconsistent with any reasonable theory of his innocence. This makes a submissible case. That the child’s death was the result of a criminal act is unquestionable. The defendant had the opportunity to commit the crime. There was nothing to connect any other of the three persons who were in the house that night with the crime. Defendant never unequivocally denied the crime, but acknowledged that he might have done it in his intoxicated state. Scientific evidence of the bloodstain and the hair pointed to defendant as the perpetrator. This was sufficient. State v. Sneed, 676 S.W.2d 301 (Mo.App.1984); State v. Appelgate, 668 S.W.2d 624 (Mo.App.1984); State v. Morris, 564 S.W.2d 303 (Mo.App.1978); cf. State v. May, 689 S.W.2d 732 (Mo.App.1985) (case submissible only if circumstantial evidence excludes every other reasonable hypothesis of innocence).

II

The admissibility of the evidence of the analysis done upon the stain on defendant’s shorts and tending to match the stain with the blood of the tiny victim is once again an issue. The defendant says that the evidence still falls short of establishing the reliability of the test and its acceptance by the scientific community. He says further that the evidence fails to show that the chemist used the correct procedure in conducting the tests, and that the evidence fails also to show that proper safeguards were taken to insure accuracy of the test results.

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

Related

Hills v. Commonwealth
528 S.E.2d 730 (Court of Appeals of Virginia, 2000)
Todd v. Lohman
911 S.W.2d 321 (Missouri Court of Appeals, 1995)
Grubbs v. Hannigan
771 F. Supp. 1159 (D. Kansas, 1991)
Onken v. State
803 S.W.2d 139 (Missouri Court of Appeals, 1991)
State v. Foote
791 S.W.2d 879 (Missouri Court of Appeals, 1990)
Funderburk v. Commonwealth
368 S.E.2d 290 (Court of Appeals of Virginia, 1988)
People v. Seda
139 Misc. 2d 834 (New York Supreme Court, 1988)
State v. McFall
737 S.W.2d 748 (Missouri Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
701 S.W.2d 518, 1985 Mo. App. LEXIS 4299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-onken-moctapp-1985.