STATE OF MISSOURI, Plaintiff-Respondent v. HUNTER KELLEY, Defendant-Appellant

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STATE OF MISSOURI, Plaintiff-Respondent, v. HUNTER KELLEY, Defendant-Appellant.

No. SD38647

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L. Crane, Judge AFFIRMED Hunter Kelley ("Kelley") appeals his convictions after a Jasper County jury found him guilty of endangering the welfare of a child in the second degree (Count I), endangering the welfare of a child in the first degree (Count II), and child abuse resulting in serious physical injury (Count III). The Circuit Court of Jasper County, Missouri ("trial court"), sentenced him to a $200 fine on Count I, two years' imprisonment and a $1,000 fine on Count II, and eight years' imprisonment on Count III to run concurrently

In Division

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to Count II. Kelley raises four points on appeal, 1 all of which concern the State's expert physicians' reliance on radiology reports which were read and interpreted by a physician who did not appear at trial ("Dr. Snyder"). Kelley argues that the State's physicians, in relying on Dr. Snyder's radiology reports to arrive at their opinions in this case, gave inadmissible hearsay testimony, and testimony that violated Kelley's Confrontation Clause rights. Because we determine that the testimony at issue is not hearsay, we deny Kelley's Point I, and decline plain error review of Points II through IV. Factual Background and Procedural History Kelley's convictions on Counts I and II stem from an incident that occurred on September 2, 2020, and the events that led to his conviction on Count III occurred on September 12, 2020. All involved Kelley's treatment of victim ("Victim"), a baby girl born to Kelley and L.B. ("Mother") in July of 2020. Kelley was Victim's primary caregiver while Mother worked. On September 2, 2020, Kelley texted Mother: "I messed up[,]" and "Everyone's alive." The texts "freaked" Mother out and she called Kelley to see what was wrong. At that time, Kelley told Mother that he had scratched Victim and she cried. Later that night, when Mother was on her way home from work, Kelley texted and called again. According to Kelley, Victim had stopped breathing and he had done CPR. Mother heard Victim crying over the phone, so she believed that everything was fine. After she arrived

1 Kelley concedes that only one of his points is preserved for our review; he requests that we review the other three points for plain error.

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home, Mother thought Kelley's CPR story did not make sense, and Victim seemed fine, so Mother believed Kelley was exaggerating. Victim became fussy and clingy over the next several days, prompting Mother and Kelley to take her to the emergency room on September 5. Victim also saw her regular pediatrician soon thereafter, "somewhere around" September 7 or 8 for her two-month checkup. Both providers believed the behavior change was likely colic. Kelley did not tell the providers about the incident on September 2, and neither did Mother, because she did not believe it had happened. On September 12, 2020, Victim woke around 2:00 a.m. Mother changed her diaper and left Victim with Kelley while he fed her a bottle. Shortly thereafter, Mother heard "a scream straight out of a horror movie" and ran in to check on them. Kelley was burping Victim and said she was fine; that he had just taken the bottle away. Victim then went limp and quit breathing. Mother and Kelley called 911, and Victim ended up "crashing" on the way to the hospital. She was later transferred to the pediatric intensive care unit ("PICU") in Springfield. The physician in the PICU, Dr. Lipscomb, a critical care pediatrician, testified that Victim had an anoxic brain injury, which results from a lack of oxygen to the brain. She also had increased intracranial pressure, was poorly responsive, needed a ventilator to breathe, and had neuro and physiological symptoms from her brain injury. The PICU team ordered multiple radiological scans which showed that Victim had subdural hematomas, retinal hemorrhaging, and a healing rib fracture. Dr. Lipscomb testified that all of these conditions were signs of trauma, but there was no identified

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source of trauma. Based on various testing and imaging ordered by the pediatric team, Dr. Lipscomb was able to rule out aspiration pneumonia, rickets, venous thrombosis (blood clots), and birth injuries as potential causes of the trauma. Since there were signs of trauma but no source of trauma was identified, she diagnosed Victim with non- accidental head trauma. 2

While Kelley initially maintained with law enforcement that Victim had choked on her formula, he later admitted that he "lost his temper" and "shook her ... three or four" times until she stopped crying, both on September 2 and September 12. He also admitted that he had searched "shaken baby stuff" on the internet because he was afraid he had harmed her, and that he had squeezed Victim out of frustration before. Kelley's defense at trial was that Victim had a blood clot in her brain, which led to her suffering a stroke. He presented three expert witnesses at trial, one of whom was a radiologist, who testified that Victim's injuries were caused by a venous stroke that occurred due to a blood clot in her brain. The State presented rebuttal testimony from child abuse pediatrician Dr. Anderst. Dr. Anderst testified – as did Dr. Lipscomb – that the imaging scans of Victim's brain were negative for blood clots. Dr. Anderst, like Dr. Lipscomb, believed that trauma had caused Victim's injuries. Kelley appeals.

2 Dr. Lipscomb testified that the term "shaken baby syndrome," while still used in the lay literature, is no longer used in the medical community because it "implies a mechanism. I can't say what happened. I can't tell you except I know that the findings are consistent with some sort of trauma which there is no history for[.]"

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Point I In his first point on appeal, Kelley argues that: The trial court abused its discretion in allowing Dr. Lipscomb to testify about the conclusions of Dr. Snyder concerning the imaging of [Victim's] brain, [...] in that this evidence was inadmissible hearsay regarding the most critical item of medical evidence and there was only a passing reference to Dr. Snyder's qualifications in the testimony. [Kelley] was prejudiced because the inadmissible hearsay had a reasonable probability of causing the jury to disbelieve the defense evidence that [Victim] suffered a stroke and thus admission of this hearsay created the reasonable probability of a different result at trial.

We disagree. "A trial court has broad discretion to admit or exclude evidence at trial." State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). "This standard of review compels the reversal of a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion." Id. "'That discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.'" State v. Forrest, 183 S.W.3d 218, 223 (Mo.2006) (quoting State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005)).

State v. Haslett, 283 S.W.3d 769, 776–77 (Mo. App. S.D. 2009).

Kelley's point is premised on the notion that Dr. Lipscomb gave hearsay testimony because she relied on radiology reports that she did not read to arrive at the conclusion that Victim did not suffer a stroke as the defense claimed. However, before we determine whether Dr. Lipscomb's testimony constituted inadmissible hearsay, we must determine whether it was hearsay at all. "A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value." Haslett, 283 S.W.3d at 778 (quoting State v. Kemp, 212 S.W.3d 135, 146 (Mo. banc

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2007)). However, as was the case in Haslett, Kelley does not point this Court to any specific hearsay statement in Dr. Lipscomb's testimony. Id. In fact, Dr. Snyder's name does not appear even one time in Dr. Lipscomb's direct testimony. Dr. Lipscomb does not mention Dr. Snyder's conclusions, nor does she restate his opinions. The only time Dr. Lipscomb mentioned Dr. Snyder's name was during cross-examination: [Defense Counsel:] And does a radiologist typically review MRI – MRA MRV films?

[Dr. Lipscomb:] A neuroradiologist is a radiologist that specifically is further trained in neuroimaging, meaning X-rays specifically of the brain. So, Dr. Snyder was the neuroradiologist who reviewed those films. He's the one who read the reports and that is his job.

Rather, Dr. Lipscomb testified about the conclusions she drew based on the relevant medical evidence that was obtained by their pediatric team, one member of which was Dr. Snyder, the neuroradiologist. As to the evidence of any blood clots in Victim's brain, Dr. Lipscomb stated: [W]e specifically ordered imaging to evaluate for that. We, as a team, ordered that test [an MRA MRV 3 ] to evaluate for any evidence of blood clots and there was none.

In arriving at that conclusion, part of the evidence that Dr. Lipscomb relied on were the MRA MRV studies, which Dr. Snyder read and reported on. Dr. Lipscomb read Dr. Snyder's reports and relied on them in formulating her opinions on the cause of Victim's injuries.

3 Dr. Lipscomb stated that an MRA MRV is a specific type of MRI which "looks at the arterial and venous blood supply into and out of the brain."

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When the defense cross-examined Dr. Lipscomb about the role the imaging played in her diagnosis of Victim's injuries, the discussion proceeded as follows: [Defense Counsel:] You testified a moment ago that one of the doctors on your team, other doctor, had - did not see any evidence of a sinus venous thrombus, a sinus stroke in [Victim]?

[Dr. Lipscomb:] Those are different terms.

[Defense Counsel:] So, but you didn't review the films yourself? You don't read them?

[Dr. Lipscomb:] I do not officially read them [the imaging studies] but I will review them. Yes, I look at them on the Epic screen.

[Defense Counsel:] But you can't make diagnosis based on the films? You're not trained in reading imaging like that?

[Dr. Lipscomb:] I am not trained at reading imaging but the neuroradiologist is and they look at lots of films that have clots and will see them if present, because that is their job.

[Defense Counsel:] Okay. But you did not do that?

[Dr. Lipscomb:] I do not but I rely one hundred percent on their reports because that's where they're trained, that's their expert specialties.

[Defense Counsel:] Right. But you didn't make those findings yourself?

[Dr. Lipscomb:] I looked at the films, yes.

[Defense Counsel:] But you didn't make the findings yourself?

[Dr. Lipscomb:] No, I did not.

Dr. Lipscomb's reliance on Dr. Snyder's reports is widely recognized as acceptable, as "[g]enerally, an expert may rely on hearsay evidence as support for opinions, as long as that evidence is of a type reasonably relied upon by other experts in

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the field; such evidence need not be independently admissible." Id. (quoting State v. Brown, 998 S.W.2d 531, 549 (Mo. banc 1999)); see also Klotz v. St. Anthony's Medical Center, 311 S.W.3d 752, 764-65 (Mo. banc 2010) (explaining that medical experts are allowed to rely on information and opinions of others, so long as those sources are not offered as substantive evidence but rather serve as the background for the expert's opinion). Kelley does not make an argument here that the radiology reports that Dr. Lipscomb relied on in arriving at her medical opinions were not of a type reasonably relied on by other experts in the field. As such, Point I fails. Points II-IV Kelley concedes that his remaining three points are not preserved for our review, and requests plain error review. 4

"Rule 30.20 is the exclusive means by which an appellant can seek review of any unpreserved claim of error, and said claim ... is evaluated by this Court's plain error framework without exception." State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020) (emphasis omitted). While we have discretion to review "plain errors affecting substantial rights," not every claim of plain error is entitled to review and the rule is to be used sparingly. Id. at 526. Plain error review is a two-step process:

The first step requires a determination of whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear. If plain error is found, the court then must proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.

4 For ease of reference, we address Kelley's points out of order, and we address Points II and IV together.

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State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022) (quoting Grado v. State, 559 S.W.3d 888, 899-900 (Mo. banc 2018)). "[T]he defendant bears the burden of demonstrating manifest injustice entitling him to plain error review." Brandolese, 601 S.W.3d at 526 (internal quotation and citation omitted). To be entitled to relief, "the appellant must show 'the error was outcome determinative.'" State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019) (quoting State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)).

State v. Woods, 707 S.W.3d 72, 74 (Mo. App. S.D. 2025).

Point III In his third point on appeal, Kelley claims that The trial court plainly erred when it failed to sua sponte intervene to strike Dr. Anderst's testimony that the imaging of [Victim's] brain did not depict blood clotting, [...] in that this testimony was inadmissible hearsay evidence that went to the ultimate issue the jury was required to decide ̶ whether [Victim] suffered non-accidental head trauma.

Because Kelley has failed to facially establish grounds for believing that a manifest injustice or miscarriage of justice has resulted, we disagree. Dr. Anderst is a child abuse pediatrician who the State called as a rebuttal expert to rebut the defense's contention that Victim died from blood clots in her brain that caused a stroke. Dr. Anderst characterized his involvement in the case and how he formed his conclusions as follows: I was asked to review [Victim's] chart. One of my colleagues actually saw [Victim] when she was transferred up to Children's Mercy, that colleague has since moved out of the country and is doing other work in life. So, I reviewed that case and reviewed the entirety of [Victim's] presentation including the medical records from Carthage, the EMS sheets, the medical records from Springfield, the birth records, the primary care records, and the records from Children's Mercy and rendered an opinion based on the totality of the findings.

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As discussed in Point I with respect to the testimony of Dr. Lipscomb, an expert "may rely on hearsay evidence as support for opinions, as long as that evidence is of a type reasonably relied upon by other experts in the field; such evidence need not be independently admissible." Haslett, 283 S.W.3d at 778 (quoting Brown, 998 S.W.2d at 549). As with Dr. Lipscomb's testimony, Kelley does not make any arguments that Dr. Anderst relied on evidence that is not of a type reasonably relied on by other experts in the field. Haslett, 283 S.W.3d at 778. Dr. Anderst, like Dr. Lipscomb, did not discuss Dr. Snyder's conclusions or his opinions, but rather his own. As such, Kelley does not demonstrate the manifest injustice that would entitle him to plain error review, and we decline to review Point III for plain error. Points II and IV – Confrontation Clause Because both points fail for the same reasons, we address Points II and IV together. In his second point on appeal, Kelley argues that: The trial court plainly erred in allowing Dr. Lipscomb to testify about the conclusions of Dr. Snyder concerning the imaging of [Victim's] brain, in violation of [Kelley's] right to confrontation [...] in that Dr. Lipscomb's recitation was prejudicial, testimonial evidence directly contradicting the defense evidence that [Victim] suffered a stroke and admission of this testimony resulted in a manifest injustice.

In his fourth point, Kelley claims that: The trial court plainly erred in allowing Dr. Anderst to testify about the conclusions of "somebody else" concerning the imaging of [Victim's] brain, in violation of [Kelley's] right to confrontation [...] in that Dr. Anderst's recitation was prejudicial, testimonial evidence directly contradicting the defense evidence that [Victim] suffered a stroke and admission of this testimony resulted in a manifest injustice.

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Again, as Kelley fails to facially show manifest injustice or a miscarriage of justice occurred, we disagree. A Confrontation Clause objection is grounded in the Sixth Amendment of the United States Constitution and challenges the admission of a witness's testimonial hearsay statement (even if otherwise admissible pursuant to an exception to the hearsay rule) because admission of the statement without affording a defendant the right to cross-examine the witness violates the right to confront witnesses.

State v. Moore, 687 S.W.3d 1, 7 (Mo. App. W.D. 2024).

Our courts have addressed this same issue in the context of a testifying medical examiner relating his or her own opinions which were based upon an absent medical examiner's observations during an autopsy. State v. Fulton, 353 S.W.3d 451 (Mo. App. W.D. 2011). Our courts have stated that, as long as the testifying expert does not discuss the absent expert's opinions or conclusions, and the absent expert's report is not admitted into evidence – neither of which occurred here – such testimony does not violate the Confrontation Clause, either. Id. at 455. Said another way, "expert testimony does not violate the Confrontation Clause if the expert is testifying to his or her own independently developed opinions, and is not merely acting as a conduit for the admission of hearsay statements of other absent individuals." State v. Sauerbry, 447 S.W.3d 780, 788 (Mo. App. W.D. 2014). As discussed in Points I and III, Dr. Lipscomb and Dr. Anderst relied on evidence that experts in their field typically rely on to reach their own conclusions about the nature of Victim's injuries. Their testimony as to their own opinions does not constitute hearsay

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and "cannot serve as the basis for a claimed Confrontation Clause violation." Fulton, 353 S.W.3d at 458. For the reasons stated herein, Kelley cannot facially establish substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. Woods, 707 S.W.3d at 74. As such, we decline to review Points II and IV for plain error. The trial court's judgment is affirmed. JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCURS

MATTHEW P. HAMNER, J. – CONCURS