State v. Wickizer

859 S.W.2d 873, 1993 Mo. App. LEXIS 1150, 1993 WL 275781
CourtMissouri Court of Appeals
DecidedJuly 27, 1993
DocketNos. WD 44756, WD 46604
StatusPublished
Cited by5 cases

This text of 859 S.W.2d 873 (State v. Wickizer) 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. Wickizer, 859 S.W.2d 873, 1993 Mo. App. LEXIS 1150, 1993 WL 275781 (Mo. Ct. App. 1993).

Opinion

SMART, Judge.

The appellant was convicted of the brutal murder and rape of a five-year-old female child. The case was tried to the court rather than to a jury. Norman Wickizer appeals from the judgment finding him guilty of first degree murder, in violation [877]*877of § 565.020.1, RSMo 1986 and forcible rape, in violation of § 566.030, RSMo 1986. Wickizer was sentenced to life imprisonment without parole for the murder conviction and to ninety-nine years imprisonment for the rape conviction. Defendant Wickizer also appeals from the denial of his Rule 29.15 motion, which has been consolidated with his direct appeal.

The judgments are affirmed.

Ramia Montgomery was five years old at the time of her death and lived with her mother, Catherine Williams, in Columbia, Missouri. Defendant Norman Wickizer lived nearby with Ramia’s aunt. Ramia knew defendant and had interacted with him on various occasions.

On Saturday morning, November 11, 1989, Ramia went to her aunt’s house to play with her cousins. Ms. Williams did not see Ramia on Saturday evening or Sunday, which was not unusual because often Ramia would spend the weekend at her aunt’s house and return home on Monday morning to attend kindergarten. However, Ramia did not return home on the following Monday morning. Ms. Williams started to look for her daughter and around noon, when she determined that Ramia was missing, she notified the police. Ramia was last seen wearing a green dress with white lace, white stockings and white shoes.

The Columbia Police Department began investigating the report of the missing child on November 13. A search team consisting of police officers and civilians was immediately formed. After the search was underway, Sergeant Jack Phillips was approached by defendant who asked Phillips if anyone had searched an area northeast of where they stood. Defendant indicated that there was a pond in that area where the police should search. Sergeant Phillips informed defendant that a helicopter was scheduled to search that area because it was a fairly open place possible to search from the air. The sergeant told defendant that if he wanted to join in the search to go look in the opposite direction, where the terrain was rocky and wooded and difficult to search by helicopter. Sergeant Kenneth Smith searched the area defendant had mentioned by helicopter and saw a man on the ground, the defendant, waving his arms at the helicopter and pointing at something on the ground. When the helicopter landed, defendant informed Sergeant Smith that he was Ramia’s “uncle” and that he had found Ramia’s body after spotting her dress in a tree near the same location. Defendant was interviewed by several officers at the police department. He was later charged with Ramia’s murder.

At defendant’s trial, Dr. Edward Adel-stein, the medical examiner for Boone County, offered the opinion that when Ra-mia’s body was found, she had been dead for at least twenty-four hours and not more than forty-eight hours, plus or minus twelve hours. Dr. Adelstein testified that the cause of Ramia’s death was asphyxiation due to an injury of the vertebral artery. The injury produced decreased blood flow to the basal part of the brain, filling up the area around the spinal cord with blood which eventually resulted in respiratory arrest and then cardiac arrest. While Dr. Adelstein could not state exactly how the injury occurred, he noted some possibilities: 1) a blunt trauma to the back of the head; 2) the head being “flapped” back very quickly; 3) the head being held and the body twisted; 4) the body being held and the head twisted; or 5) the head being forced forward and jarred. Dr. Adelstein also found a small bruise in the back of Ramia’s neck which he testified would not be a common injury that a five-year-old child would sustain from normal play activities. He further concluded that a blunt-force trauma to the area where he found the bruise could have caused the hemorrhage in Ramia’s vertebral artery. Ramia also suffered a complete laceration between the vagina and the anal area constituting a complete tearing through the anal sphincter. Based on this physical evidence, Dr. Adelstein concluded that there was forceful penetration to Ramia’s vagina pri- or to death. Based upon circumstantial evidence linking defendant to the murder and rape of Ramia, defendant was found guilty by the court. Defendant appeals [878]*878from the conviction and the denial of his post-conviction motion. Defendant’s fifteen points on appeal will be addressed in the following order: 1) trial court error; 2) motion court error; and 3) pro se points.

Circumstantial Evidence

Defendant alleges that the trial court erred in overruling the motion of judgment of acquittal at the close of all the evidence and in finding defendant guilty of first degree murder because it deprived him of his right to due process, as guaranteed by the fourteenth amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution. Defendant claims the state’s case was “premised entirely on circumstantial evidence and the facts and circumstances were not inconsistent with and did not exclude every reasonable hypothesis of Mr. Wickizer’s innocence as to deliberation because choking, strangulation, and a hard slap were excluded as possible means of causing death” and because the pathologist testified Ramia’s death occurred as a result of a struggle which produced a tear in the vertebral artery.

Prior to the recent Missouri Supreme Court decision in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993), if a case was based solely on circumstantial evidence, the facts and circumstances relied on to establish guilt had to be consistent with each other and with the hypothesis of the defendant’s guilt and the facts and circumstances also had to be inconsistent with and exclude every reasonable hypothesis of the defendant’s innocence. State v. Roby, 756 S.W.2d 629 (Mo.App.1988).

The holding in State v. Grim eliminated the different treatment employed in circumstantial evidence cases which required the state to meet a higher standard in affirming criminal convictions in circumstantial evidence cases. 854 S.W.2d 403 (Mo. banc 1993). In the past, the prosecution has been required to meet a different burden in circumstantial evidence cases because of a basic distrust for criminal convictions based on circumstantial evidence. Id. at 405. Over the years, Missouri courts have relaxed the standard by including the following language with the circumstantial evidence standard: “[T]he evidence need not be absolutely conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence.” Id. at 406 (emphasis in original). In determining that a different standard for circumstantial evidence cases is confusing and unnecessary, the Missouri Supreme Court stated:

No reason remains to perpetuate this different rule. Any societal distrust of circumstantial evidence has long been abandoned. We no longer need to hold circumstantial evidence cases to a higher standard than direct evidence cases. If a jury is convinced beyond a reasonable doubt, so long as the evidence meets the minimal appellate standard required by due process, we need not disturb the result simply because the case depended wholly, mostly, or partially upon circumstantial proof.

Id.

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Cite This Page — Counsel Stack

Bluebook (online)
859 S.W.2d 873, 1993 Mo. App. LEXIS 1150, 1993 WL 275781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wickizer-moctapp-1993.