Craig C. Stevens ("Stevens") appeals his conviction of the class C felony of abuse of a child in violation of section 568.060.
On February 9, 2011, Stevens was tried by a jury. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial.
C.W. was born on June 29, 2003. On December 31, 2008, C.W. was living with his mother — Alisha Knopfel ("Knopfel"), his brother — T.W., and Knopfel's boyfriend — Travis Fisher ("Fisher"). That evening, Stevens — C.W.'s grandfather
Cordova said that the adults began drinking straight shots of alcohol about 9:00 or 9:30 p.m. Before 11:45 p.m., all the adults had gotten sick and vomited from drinking shots. Cordova went to sleep between 11:30 and 11:45 p.m. The next time Cordova saw C.W. was between 8:00 and 8:30 the next morning. C.W. was in his bedroom, sitting in a chair tied up. Cordova believed C.W. was tied up with "a shirt that was wrapped around and tied up." Stevens was sleeping within an arm's reach of C.W. Cordova asked Stevens "if [C.W.] was tied up." Stevens "leaned up and nodded his head and said yes." Cordova also told Knopfel what she saw, but Knopfel did nothing. Cordova did not see anyone untie C.W. before she left around 8:30 a.m.
Later that month, Cordova called the police. On January 13, 2009, police officer Lydle Davis ("Officer Davis") escorted a Division of Family Service ("DFS") worker to Knopfel's residence. Officer Davis seized what appeared to be a "straitjacket." Knopfel identified the jacket as an item made from her Halloween costume when she dressed as a mental patient.
The State charged Stevens with abuse of a child, alleging he knowingly inflicted cruel and inhuman punishment upon C.W. by "putting a straight jacket [sic] on [him], inserting a sock in his mouth, duct taping his mouth and tying him to a chair."
C.W. testified that Stevens put the straitjacket on him and put him in a recliner in his bedroom. C.W. testified that he could not get out of the recliner because Stevens had strapped his feet together and strapped him to the chair. C.W. also said he could not talk "[b]ecause [Stevens] had a sock in my mouth." C.W. said that "[Fisher] I think[]" taped the sock. C.W. said that Fisher was there when Stevens "was doing this to me." C.W. also testified that Stevens had a history of beating C.W. with a belt and with his hand.
On January 13, 2009, Dr. Otha Rains, Jr. ("Dr. Rains"), examined C.W. after he was brought to the emergency room by DFS for examination and evaluation. Dr. Rains testified that on C.W.'s "facial areas he had big abrasions on the lateral part of his
"Instruction No. 5" was submitted to the jurors as follows:
The jurors returned a verdict finding Stevens guilty of abuse of a child as submitted in Instruction No. 5. The trial court sentenced Stevens as a prior and persistent offender to fifteen years' imprisonment. This appeal followed.
Stevens contends the trial court erred in imposing judgment and sentence against Stevens for abuse of a child because the evidence was insufficient to convict Stevens of the offense in that the evidence failed to establish that Stevens placed a sock in C.W.'s mouth and covered it with tape. The issue pertinent to our resolution of this appeal is whether the evidence was sufficient to support a reasonable inference that Stevens placed a sock in C.W.'s mouth and secured it with tape.
"When considering the sufficiency of the evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt." State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). This Court must consider the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the verdict and disregard all inferences to the contrary. State v. Biggs, 333 S.W.3d 472, 480 (Mo. banc 2011). "Even if the evidence would support two equally valid inferences, only the inference that supports the finding of guilt can be considered." State v. Latall, 271 S.W.3d 561, 568 (Mo. banc 2008). In reviewing the evidence, however, this Court cannot supply missing evidence or give the State the
Section 568.060.1(1) provides that a person commits the crime of abuse of a child if such person "[k]nowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old[.]" "`[P]unishment,' as used in § 568.060, includes `severe, rough, or disastrous treatment.'" State v. Silvey, 980 S.W.2d 103, 108 (Mo. App. S.D.1998).
Here, the State chose to submit the case against Stevens based upon Stevens' guilt as a principal; consequently, the State accepted the burden of proving that Stevens "placed [C.W.] in a straitjacket, tied him to a chair and gagged him by placing a sock in his mouth and securing it with duct tape[.]"
C.W. unequivocally testified that Stevens put the straitjacket on him, strapped his feet together, and strapped him in a recliner in his bedroom. Directly following this testimony identifying Stevens as doing these things to him (and before any mention of Fisher or anyone else), C.W. was asked why he could not talk; C.W. said, "Because he had a sock in my mouth." (Emphasis added). Logically, in this context, the "he" is referring to Stevens. While C.W. did subsequently respond that "[Fisher] I think" taped the sock, the jury was permitted to believe all, some, or none of C.W.'s testimony in arriving at its decision. Cannafax, 344 S.W.3d at 284. The phrase "I think" included by C.W. could reasonably have raised doubt as to that part of C.W.'s testimony identifying Fisher as the one taping his mouth. Moreover, C.W. went on to respond in the affirmative that Fisher was "there when [Stevens] was doing this to you." This again supports an inference that Stevens was the one who placed C.W. in a straitjacket, tied him to a chair, and gagged him by placing a sock in his mouth and securing it with duct tape. Finally, Stevens was sleeping within an arm's reach of C.W., and Cordova asked Stevens in the morning "if [C.W.] was tied up"; Stevens "leaned up and nodded his head and said yes."
This Court is required to give deference to the jury's credibility decisions. State v. Herrington, 315 S.W.3d 424, 425 (Mo.App. S.D.2010). "Unlike the reviewing tribunal, which only sees the cold record and does not have the opportunity to judge the witnesses who gave testimony, the jurors
Viewed in the light most favorable to the verdict, we find this evidence sufficiently supported a reasonable inference that Stevens placed a sock in C.W.'s mouth and secured it with tape. Point denied. The judgment is affirmed.
BARNEY and BATES, JJ., concur.