State of Missouri, Respondent, v. Charles Hineman, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent, v. Charles Hineman, Appellant. Case Number: 55962 Handdown Date: 06/08/1999 Appeal From: Circuit Court of Jackson County, Hon. Justine Elisa Del Muro Counsel for Appellant: Rosemary E. Percival Counsel for Respondent: John Munson Morris Opinion Summary: Defendant Charles Hineman appeals his convictions for one count of assault in the first degree, section 565.050 RSMo 1994, and one count of child abuse, section 568.060 RSMo 1994, and consecutive sentences of ten and three years imprisonment, respectively. On appeal, Mr. Hineman contends the trial court erred in failing to submit a proposed instruction for assault in the second degree, the lesser-included offense of assault in the first degree, because he was entitled to have the lesser-included offense submitted since the evidence provided a basis for the instruction. AFFIRMED. Division III holds: The state presented substantial evidence to support the finding that Mr. Hineman knowingly assaulted Dakota. No evidence was presented to support a finding that Mr. Hineman's assault on Dakota was reckless as defined within section 565.060 and MAI-Cr. 3d 319.12. The trial court was not required to instruct on the lesser- included offense of second-degree assault. Citation: Opinion Author: Robert G. Ulrich, Judge Opinion Vote: AFFIRMED. Howard, P.J., and Smart, J., concur. Opinion:

Defendant, Charles Hineman, appeals his convictions for one count of assault in the first degree, section 565.050 RSMo 1994, and one count of child abuse, section 568.060 RSMo 1994, and consecutive sentences of ten and three years imprisonment, respectively. On appeal, Mr. Hineman contends the trial court erred in failing to submit a proposed instruction for assault in the second degree, the lesser-included offense of assault in the first degree, because he was entitled to have the lesser-included offense submitted since the evidence provided a basis for the instruction. The judgment of convictions is affirmed. FACTS Charles Hineman was charged by information with one count of assault in the first degree, section 565.050,(FN1) and one count of child abuse, section 568.060. Mr. Hineman was tried before a jury in the Circuit Court of Jackson County on March 16, 1998. The following evidence was adduced at trial. On February 23, 1997, Mr. Hineman and his fiancée, Ara Lansdown, were in their home with their 10- week-old son, Dakota. Mr. Hineman, Ara, and Dakota had spent the afternoon at Ara's parents' house. They returned to their home at approximately 3:00 o'clock in the afternoon. At that time, Dakota had no noticeable injuries. The defendant, Ara, and Dakota spent the rest of the day at their home. Dakota appeared to be normal. At approximately 10:30 p.m., Mr. Hineman took Dakota upstairs to put him to bed for the night. According to Mr. Hineman, after putting Dakota in his crib, he "gently nudged" Dakota into a different position by pulling on his right leg. Mr. Hineman then went to use the bathroom. Upon his return, Mr. Hineman found that Dakota's right leg was caught in a blanket. Upon closer examination, he noticed that Dakota's leg was in a strange position and that it seemed "more flexible" than usual. At that point, Mr. Hineman called Ara upstairs to show her Dakota's leg. They examined the baby, and Mr. Hineman lifted the leg slightly. Dakota did not cry; therefore, Mr. Hineman and Ara assumed that nothing was wrong with Dakota. At approximately 3:00 a.m., Ara woke to check on Dakota and discovered that Dakota's right leg was extremely swollen and sensitive. She alerted Mr. Hineman and that morning they took the baby to the Children's Mercy Hospital emergency room. Dakota was examined, and x-rays revealed that he had a fracture to the right femur approximately zero to three days old. Because the bone was completely severed at the break, the injury was described as a very displaced fracture. Experts testified at trial that such a fracture could only be caused by an extreme amount of force that could not be generated by a 10-week-old baby. The x-rays also revealed multiple older fractures. Dakota had at least one upper tibia fracture approximately seven to fourteen days old

and five rib fractures approximately ten to twenty-one days old. Mr. Hineman and Ara told hospital staff that they did not know how Dakota had been injured. They did not offer any history of trauma to the baby, but eventually related stories of several "accidents" that had occurred. Mr. Hineman informed the social worker and other hospital personnel that he had gently pulled on Dakota's right leg the night before after putting him in his crib. He also told the social worker that he had accidentally dropped the baby about a month before while bathing him and that there had been two incidents where the couple's large dog had jumped on Dakota when he was in his car seat or on the couch. On February 25, 1997, the Division of Family Services contacted Detective Dave Ross of the Kansas City Police Department regarding Dakota's condition. Detective Ross requested that Mr. Hineman and Ara accompany him to the police station for an interview concerning Dakota's injures, and they complied. Upon arriving at the station, Detective Ross took Mr. Hineman into an interrogation room. He first took down Mr. Hineman's basic biographic information and then read Mr. Hineman his Miranda rights. Mr. Hineman initially insisted that he did not know how Dakota could have been injured. He later told Detective Ross about the two incidents with the dog and the occasion of his having dropped Dakota when bathing him, but he maintained that he did not know at the time that Dakota had been injured. At some point, Detective Ross informed Mr. Hineman that he did not believe him. Mr. Hineman eventually admitted that he might have caused the leg injury the night before by pulling on Dakota's leg. In his statement to the police, Mr. Hineman stated that he was aggravated with Ara's stepmother, and when he placed Dakota in his crib, he grabbed Dakota's leg and pulled it hard. Detective Ross testified that Mr. Hineman then proceeded to show him with his hands how he had used both hands to pull Dakota's leg out to the side. At trial, however, Mr. Hineman testified that he did not know how Dakota was injured, and he denied ever showing Detective Ross that he put both hands on Dakota's leg. During trial, the state presented two experts who testified that the injuries Dakota manifested when presented at Children's Mercy Hospital were the result of multiple blows at different times and that such injures are typically nonaccidental and associated with child abuse. Dr. Nigel Price, a pediatric orthopedic surgeon at Children's Mercy Hospital, described Dakota's femur fracture as a very displaced fracture that would require an extreme amount of force. He testified that he had never seen a more displaced fracture in the baby's age group and that such an injury could only have been created by great force administered by an adult or a catastrophic event. Dr. Price stated at trial that Dakota's injury was nonaccidental.

Dr. Jeffrey Foster, a pediatric radiologist, also testified regarding Dakota's injuries stating that such injures usually indicate child abuse. In his testimony, Dr. Foster explained that children's bones are more flexible than adult bones and that a child under six months could not generate enough force to cause such a fracture on its own. He stated that the amount of force necessary to cause such a break would not occur in the course of normal childcare and that Dakota's injuries were nonaccidental. Mr. Hineman's parents and Ara testified in his behalf and corroborated his account of the events leading to Dakota's hospitalization. Mr. Hineman testified and denied any responsibility for Dakota's injuries, stating that the injuries were the result of a series of accidents. At the close of all the evidence, the court denied Mr. Hineman's motion for judgment of acquittal. Defense counsel requested that the court submit an instruction on second degree assault to the jury. The court denied counsel's request finding that no evidence was presented to support the proffered instruction. The jury found Mr. Hineman guilty of first-degree assault and child abuse. On May 22, 1998, the court overruled Defendant's motion for new trial and sentenced him to ten years imprisonment for first degree assault and three years imprisonment for child abuse. This appeal followed. DEFENDANT'S POINT ON APPEAL In his sole point on appeal, Mr. Hineman contends that the trial court erred in failing to submit proposed instruction "A" for assault in the second degree, the lesser-included offense of assault in the first degree, because the evidence supported submission of the instruction and he was entitled to have the lesser-included offense submitted. Defendant's proposed instruction "A" was as follows: As to Count ____, if you do not find the defendant guilty of assault in the first degree as submitted in Instruction No. ____, you must consider whether he is guilty of assault in the second degree as submitted in this instruction. As to Count I, if you find and believe from the evidence beyond a reasonable doubt: That on or about February 23, 1997, in the County of Jackson, State of Missouri, the defendant recklessly caused serious physical injury to Dakota R. Hineman, dob 12/11/96, by pulling on Dakota R. Hineman's right leg, causing bones in the right leg to break, then you will find the defendant guilty of Count I of assault in the second degree. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilt of that offense. A person acts "recklessly" as to causing serious physical injury if he consciously disregards a substantial and unjustifiable risk that his conduct will result in serious physical injury and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

If you do find the defendant guilty under Count I of assault in the first degree, you will return a verdict finding the defendant guilty of assault in the first degree. Instruction "A" was patterned after MAI-Cr. 3d 319.12 as modified by 304.08. Mr. Hineman contends the trial court erred in refusing to submit his proffered instruction on the lesser-included offense because sufficient evidence was offered that he acted recklessly and not knowingly in harming Dakota. The trial court is not obligated to give a lesser-included offense instruction unless the evidence supports acquitting the defendant of the greater offense and convicting him of the lesser offense. Section 556.046.2; State v. Mease, 842 S.W.2d 98, 111-12 (Mo. banc 1992), cert. denied, 508 U.S. 918 (1993); State v. Barnard, 972 S.W.2d 462, 466 (Mo. App. W.D. 1998). To submit a lesser-included offense instruction, some affirmative evidence must have been presented that an essential element of the greater offense is lacking, and the absent element must form the basis for conviction of the lesser offense. Barnard, 972 S.W.2d at 466. A lesser-included offense instruction is not required where "strong and substantial proof" of the greater offense charged exists or where the evidence does not suggest a questionable essential element of the more serious offense charged. State v. Coleman, 949 S.W.2d 137, 142 (Mo. App. W.D. 1997). In reviewing the evidence to determine whether the defendant was entitled to the lesser-included offense instruction, this court views the evidence in the light most favorable to the defendant. State v. Hinsa, 976 S.W.2d 69, 72 (Mo. App. S.D. 1998). The mental state of the accused is the distinguishing factor between the two degrees of assault at issue in the instant case. To obtain a conviction for first degree assault, the state was required to prove beyond a reasonable doubt that the defendant "knowingly" caused serious physical injury to Dakota by pulling on his leg. Section 565.050; MAI-Cr. 3d 319.02. A person acts "knowingly" or with knowledge when: (1) with respect to his conduct or to attendant circumstances, he is aware of the nature of his conduct or that those circumstances exist, or (2) with respect to a result of his conduct, he is aware that his conduct is practically certain to cause that result. Section 562.016.3; State v. Garrison, 975 S.W.2d 460, 461 (Mo. App. S.D. 1998). A conviction for second degree assault, however, requires proof that the defendant acted "recklessly" in causing serious physical injury to Dakota. Section 565.060; MAI-Cr. 3d 319.12. A person acts "recklessly" in causing serious physical injury where (1) he consciously disregards a substantial and unjustifiable risk that his conduct will result in serious physical injury, and (2) such disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. Section 562.016.4; State v. Lowrey, 764 S.W.2d 957, 958 (Mo. App. E.D. 1989). For Mr. Hineman to be entitled to an instruction on second degree assault, insufficient evidence must

have been offered that Mr. Hineman acted knowingly when he pulled Dakota's leg to support a conviction for the offense charged, and sufficient evidence must have been offered to support a finding that he acted recklessly in injuring Dakota. See Mease, 842 S.W.2d at 111-12; Barnard, 972 S.W.2d at 466. The trial court refused to submit the instruction on second degree assault because it found that no evidence was presented to support a finding that Mr. Hineman acted recklessly. Review of the evidence does not reveal any evidence that would support an instruction on second degree assault. Mr. Hineman denied responsibility for Dakota's injuries throughout his testimony contending that the injuries were the result of a series of accidents. Mr. Hineman maintained that although he did "gently pull" Dakota's leg after putting him in the crib, he never intended to hurt Dakota. The testimony of Ara and Mr. Hineman's parents corroborated Defendant's explanations for the injuries. The evidence presented by Mr. Hineman did not support a finding that he acted recklessly by consciously disregarding a substantial and unjustifiable risk of serious physical injury to Dakota. The state presented evidence showing that that Dakota's leg fracture could only have been caused by an extreme amount of force created by either an adult or a catastrophic event. Both of the state's experts testified that the types of injuries sustained by Dakota are typically nonaccidental and associated with child abuse. The state also presented Detective Ross who testified that in the police interview Mr. Hineman admitted that he was aggravated with Ara's stepmother when he grabbed Dakota's leg and that he pulled hard on Dakota's right leg when he put him in his crib. Detective Ross also testified that Mr. Hineman showed him how he had used both hands to pull Dakota's leg out to the side. All of the evidence supports a finding of intentional assault by Mr. Hineman, not recklessness. Mr. Hineman contends that the jury could reasonably have inferred from evidence of his having pulled Dakota's leg that he was preoccupied over his aggravation with Ara's stepmother and did not think about his actions. Even when viewed in the light most favorable to Mr. Hineman, the evidence that he intentionally pulled Dakota's leg does not support a finding of recklessness. Where a grown man intentionally grabs the leg of a ten- week old infant in anger and forcefully pulls it to the side, he acts with the knowledge and awareness that his conduct is practically certain to cause serious physical injury. His conduct is intentional and not reckless. Such evidence does not support Mr. Hineman's contention that he embarked on a course of conduct that included substantial and unjustified risk of injury to Dakota and that he consciously disregarded that risk. The state presented substantial evidence to support the finding that Mr. Hineman knowingly assaulted

Dakota. No evidence was presented to support a finding that Mr. Hineman's assault of Dakota was reckless as defined within MAI-Cr. 3d 319.12 or that any of the elements for assault in the first degree were not proven beyond a reasonable doubt. In the absence of affirmative evidence, the trial court was not required to instruct on the lesser-included offense of second-degree assault. The point is denied. The judgment of convictions is affirmed. All concur. Footnotes: FN1. All statutory references are to RSMo 1994 unless otherwise indicated. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.