State of Missouri vs. Justin Ray Webb

Modified 1/29/19

STATE OF MISSOURI,

Respondent,

v.

JUSTIN RAY WEBB,

Appellant. ) ) ) ) ) ) ) ) ) ) WD81004

OPINION FILED: December 26, 2018

Appeal from the Circuit Court of Clinton County, Missouri The Honorable R. Brent Elliott, Judge

Before Division Four: Karen King Mitchell, Chief Judge, and Victor C. Howard and Lisa White Hardwick, Judges

Justin Webb appeals, following a jury trial, his convictions of second-degree (felony) murder, § 565.021.1(2), 1 and first-degree endangering the welfare of a child, § 568.045.1(1), for which the court sentenced him to consecutive terms of thirty and seven years' imprisonment, respectively. Webb raises four claims on appeal: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in admitting photographs of Victim after his death; (3) the trial court erred in admitting Victim's out-of-court statements to two of his teachers; and (4) the trial

1 All statutory citations are to the Revised Statutes of Missouri, Cum. Supp. 2012, unless otherwise noted.

2 court violated Webb's Eighth Amendment right to be free from cruel and unusual punishment by sentencing him to a longer term of imprisonment than that of his co-perpetrator. Finding no error, we affirm. Background 2

On October 15, 2012, four-year-old Victim (born January 2, 2008) lived in an 1800-square-foot home in Holt, Missouri, with Webb (his father), Melissa Webb (Stepmother), and his younger brother (the child of Webb and Stepmother). That afternoon, around 1:30 p.m., Webb arrived home from work. Stepmother and Brother sat in the living room to play a board game, while Webb was doing something in the kitchen. Victim walked down the hall toward Stepmother and Brother when Stepmother approached Victim and kicked him, knocking him to the floor. Victim tried to get away, but Stepmother kept kicking him repeatedly between the legs and in the abdomen, eventually causing Victim to vomit between screams. Brother tried to get Webb to stop the attack, but Webb did nothing. Stepmother eventually stopped, and Victim stumbled outside and fell on his knees and then to the ground. Brother told Webb, who told Brother to get Stepmother. Victim's eyes were closed, and Webb did something to Victim's mouth that Brother described as "holding up his tongue," and that investigators later believed to be an effort at CPR. A call was made to 911 around 3:15 p.m., reporting a four-year-old child who was not breathing. When paramedics arrived, they observed Stepmother on the front porch performing CPR on Victim, Webb standing by, restraining a dog, and Brother off to the side. One of the paramedics asked what happened, and neither Webb nor Stepmother responded. The paramedic

2 "In reviewing the sufficiency of the evidence, all evidence favorable to the State is accepted as true, including all favorable inferences drawn from the evidence." State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). "All evidence and inferences to the contrary are disregarded." Id.

3 asked again, and again neither responded. Eventually, the paramedic was advised that Victim "had been kicked in the head at the fair a couple of days ago, had woken up with a bellyache, and now this." The paramedic asked how long Victim had been down and not breathing, and neither Webb nor Stepmother responded. The paramedic asked a total of three times how long Victim had not been breathing, and she never received an answer. Victim's heart was not beating, which suggested to the paramedic that Victim had not been breathing for a while; 3 she also observed dark discolorations around Victim's head. At that point, they put Victim in the ambulance and headed for the hospital. On the way to the hospital, the paramedic tried to intubate Victim to get him oxygen, but she was unable to get his jaw open because it was rigid from the onset of rigor mortis. 4 Upon removing Victim's clothing, the paramedic observed "bruising around the side of the head on the right side, behind both ears, [and] down the back of his neck"; she also observed that Victim's penis was bruised. Victim had a "coffee grounds appearance coming from his nose and his mouth," which the paramedic said was "sometimes an indication of internal bleeding." When they arrived at the hospital and rolled Victim over, the paramedic observed large bruises on Victim's buttocks and lower back. At the hospital, three physicians and all of the nursing, respiratory, laboratory, and X-ray staff were assembled in preparation for Victim's arrival. Hospital staff again tried to secure Victim's airway but were unable to open his jaw. Hospital staff noted the onset of rigor mortis in other areas of Victim's body besides his jaw. Victim was pronounced dead at 3:50 p.m.

3 Paramedic testified that, if Victim's breathing had stopped shortly before the 911 call, she would have expected to still observe electrical activity in the heart.

4 The paramedic testified that rigor mortis typically begins in the small facial muscles. The medical examiner testified that the timing of the onset of rigor mortis varies, but it occurs faster in children and faster where there is an element of infectious disease, as was the case here.

4 The medical examiner performed an autopsy of Victim the next day. The first thing the examiner noticed was that Victim was underweight. The examiner documented the following injuries to Victim: Extensive contusions and abrasions were found on the back, sides, cheeks, chin, forehead, and temples of his head. His outer lips were bruised, and his inner lips were lacerated. Internal hemorrhaging was found on the posterior regions of his head and neck. He had extensive contusions and abrasions on the front, back, and sides of his torso, sacrum, and buttocks; his entire torso was discolored. His penis and scrotum were bruised, and his penis had two lacerations on its dorsal side. Multiple contusions and abrasions were located on all four of his limbs. Four healing broken ribs were discovered. Hemorrhages were found in his lungs, pancreas, diaphragm, and small bowel, and several lacerations located in multiple areas within his gastrointestinal system.

Victim had a thousand milliliters of blood in the abdomen, indicating that he had severe internal bleeding. The examiner determined that Victim's most significant injury—and the ultimate cause of his death—was a laceration in the small bowel. The examiner testified, [I]njuries like this are caused by blows to the abdomen in young children, and what happens is that the skin surface is basically pushed all the way to the vertebral column, which is bone and it's hard. So all the tissues caught in between are split or torn or lacerated. So he has that kind of injury in the head of the pancreas; in the omentum, which hangs off of the stomach; the stomach is ruptured in two places; and the small bowel is split; and the tissue that supplies blood to the colon is also lacerated. So—and these are all organs that would have been caught—or, these are all tissues or organs that would have been caught between the blow and the vertebral column.

According to the examiner, a person suffering this kind of injury will "go into shock pretty rapidly, especially with this kind of blood loss." 5 And, "the dumping of all of these intestinal contents free into the abdomen . . . sets up a terrible infection, and that's what[] caus[ed] th[e] discoloration over [Victim's] abdomen." The examiner indicated that this kind of injury would be immediately symptomatic and cause extreme pain; he surmised that Victim would "probably be rolling around

5 The examiner testified that loss of one-and-a-half liters of fluid in a 150-pound adult male would be fatal. Victim had a liter of fluid in his abdomen, and he weighed only 41 pounds.

5 in pain until he passe[d] out." 6 He further indicated that, if untreated, this kind of injury is fatal within a matter of hours. The examiner determined the cause of death to be "[b]lunt force injuries of the thorax and abdomen," and the manner of death to be homicide. Two days after Victim's death, both Webb and Stepmother were interviewed by an investigator with the Major Case Squad. When asked about Victim's bruising, Webb claimed that Victim bruised easily, fell often, was easily injured, and had a high pain tolerance. 7 Webb further explained that giving Victim Vitamin D milk helped lessen Victim's bruising, but they had been out of Vitamin D milk for over two weeks at the time of Victim's death. Webb suggested that Victim had a habit of chewing on his own lips and that a heart defect caused Victim to burn energy at a high rate, leading to Victim being underweight. Webb suggested that the injuries to Victim's abdomen may have occurred the evening before his death, when the family went to a fall gathering where Victim was playing on a hay bale and an older child jumped off the hay bale and landed on Victim. Webb suggested that the injuries to Victim's back and head occurred when Victim climbed the hay bale a second time and slipped off. When asked about the injuries to Victim's penis, Webb claimed that, on October 12, while Webb was in the kitchen cooking, he heard Brother and Victim in the bathroom. Apparently, Victim had been using the bathroom when Brother suddenly needed to go, and Brother did not wait for Victim to move before putting his seat on the toilet and smashing Victim's penis. Also on October 12, Webb observed a knot on Victim's head when Webb came home from work; he asked about it, and the boys said Victim fell off a truck. Stepmother claimed to know nothing about it.

6 Because of the nature of Victim's injuries, Brother was immediately removed from the home and placed with a foster family. Shortly thereafter, while playing a game on the floor with his foster mother, Brother spontaneously began rolling around on the floor and then said that is what happened to Victim "when his mommy kicked him."

7 When asked how he knew Victim had a high pain tolerance, Webb described an incident where Victim was playing in the backyard when he fell and hit his testicles, causing them to swell to the size of a softball, and they were able to treat his injury with just an ice pack.

6 When asked about the day of Victim's death, Webb said he arrived home around 1:30 or 2:00 in the afternoon, and Stepmother told him that Victim had been sick. So Webb checked on Victim, who appeared fine, and Webb then went to bed, as he had worked all night the night before. Webb said that he heard Victim ask for a drink of water, and shortly thereafter, he heard Stepmother scream for Webb to get up because they needed to take Victim to the hospital. According to Webb, Stepmother carried Victim outside, and Victim was throwing up down her back while she was on the phone with 911. Webb said that Stepmother then placed Victim on his back on the deck, per instructions from the 911 operator, and began CPR. Webb said that Stepmother did chest compressions while Webb provided breaths. Webb said that, when the paramedics arrived, they did nothing to assist either him or Stepmothe