STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD35356
) Filed: February 14, 2019
CHRISTA ELAINE MUELLER, )
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable William E. Hickle, Circuit Judge
AFFIRMED
A jury found Christa Mueller (Defendant) guilty of assault in the first degree. See
§ 565.050.1 She presents two points for decision. In Point 1, she challenges the sufficiency
of the evidence to support her conviction. In Point 2, she contends the trial court plainly
erred by failing to sua sponte declare a mistrial or issue a curative instruction when the
prosecutor allegedly misstated the law regarding accomplice liability during the rebuttal
1
All statutory references are to RSMo (2000). All rule references are to Missouri
Court Rules (2018).
portion of closing argument. Finding no merit to either point, we affirm the trial court’s
judgment.
Procedural Background
Defendant and Calvin Alford (Alford) were charged by indictment with committing
the class A felony of assault in the first degree by injuring L.H. (Victim). See § 565.050.
The indictment charged that “the defendants, each of them acting in concert, knowingly
caused serious physical injury to a seventeen month old child, [Victim], by striking and
shaking [Victim] and in the course thereof inflicted serious physical injury to [Victim]
which includes a traumatic brain injury, skull fracture, broken shoulder, and a fractured
arm.” The case against Defendant was brought to trial in September 2017.2 The assault
charge against Defendant was submitted to the jury on an accomplice liability theory. See
§ 562.041.1. The jury found Defendant guilty as charged. The trial court imposed a 20-
year sentence, and this appeal followed.
Discussion and Decision
Point 1
Defendant’s first point on appeal challenges the sufficiency of the evidence to
support her conviction. “Appellate review of sufficiency of the evidence is limited to
whether the State has introduced adequate evidence from which a reasonable finder of fact
could have found each element of the crime beyond a reasonable doubt.” State v.
Lammers, 479 S.W.3d 624, 632 (Mo. banc 2016). An appellate court “considers all
evidence in the light most favorable to the verdict and grants the State all reasonable
2
Defendant and Alford were tried separately.
2
inferences. Contrary evidence and inferences are disregarded.” Id. (citation omitted). We
do not weigh the evidence. State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015).
Instead, we defer to the fact-finder’s “superior position to weigh and value the evidence,
determine the witnesses’ credibility and resolve any inconsistencies in their testimony.”
State v. Lopez-McCurdy, 266 S.W.3d 874, 876 (Mo. App. 2008). The State may prove its
case by presenting either direct or circumstantial evidence connecting the defendant to each
element of the crime. State v. Hoosier, 267 S.W.3d 767, 770 (Mo. App. 2008).
Circumstantial evidence is given the same weight as direct evidence and the jury is free to
draw reasonable inferences from the evidence presented. Id. Viewed from that
perspective, the following evidence was adduced at trial.
In April 2006, Defendant lived in an apartment with Victim. Defendant had been
in a relationship with Alford for approximately four months. Alford occasionally stayed
at the apartment with Defendant and Victim. The environment in the residence was
“chaotic” due to frequent yelling, screaming and fighting involving Defendant and Alford.
The charge against Defendant stemmed from conduct occurring in the early
morning hours of April 6, 2006. On April 5, Defendant’s neighbor, Stephanie Bundy
(Bundy), saw Defendant and Victim at the apartment complex. Victim appeared to be
okay. At approximately 6 a.m. on April 6, Bundy was awakened by the sound of Alford
screaming at Defendant. When Bundy went downstairs to ask that Alford and Defendant
quiet down, Defendant cracked open the door and was “standoffish.” While Bundy was at
the door, Alford called Defendant a “bitch,” told her to “knock her shit off” and “shut the
fucking door.” Alford also told Defendant to “get in there and fix her shit.”
3
Later that afternoon, Defendant phoned another of her neighbors, Jackie Mullins
(Mullins). During that conversation, Defendant said she was concerned because Victim
wasn’t responding to her. Mullins told Defendant to call an ambulance. Mullins also called
Bundy and asked her to check on Defendant and Victim. When Defendant answered the
door, she was “very frantic and upset.” Alford was pacing and mumbling. Victim was
lying on the couch in the living room, unmoving. Victim’s “pupils were completely fixed
and dilated.” Defendant said that she had given Victim some Benadryl. Bundy told
Defendant to call 9-1-1, but Defendant was “hesitant.” Defendant refused to call 9-1-1
until Bundy swore at her to do so, and told Defendant that it “would be better for you … if
you did.”
Paramedics responded to the call from Defendant’s apartment at approximately 6
p.m. When the paramedics arrived, Victim was still lying on the couch, unresponsive.
Defendant told paramedic Lisa Steelman (Steelman) that Victim fell from her crib two
hours prior. Steelman was “furious” that Victim had been left in her condition for two
hours. Following Steelman’s reaction to Defendant’s statement, Defendant and Alford
began changing their stories back and forth to alter their account of when and how Victim’s
injuries had occurred. Steelman “couldn’t get a straight answer after that.” Steelman
testified that Defendant did not ask any questions about Victim and was “not crying and
not acting as I would feel that a mother in that situation would react.” Steelman did not
offer Defendant the opportunity to ride in the ambulance because she “felt that this baby
had been intentionally harmed.” Steelman noticed marks and a bruise on Victim’s face.
She also noticed finger-shaped bruises on Victim’s right upper arm. Victim was
4
transported to Phelps County Regional Medical via ambulance and was subsequently life-
flighted to Children’s Hospital in St. Louis.
A child-abuse pediatrician, Dr. Marcella Donaruma (Dr. Donaruma), examined
Victim and testified extensively about her condition and injuries.3 When Victim arrived at
the hospital, she was “near death[,]” had “impending breathing failure[,]” and exhibited
injuries so severe that her survival was not certain. Dr. Donaruma described Victim as
“altered.” She had bruises on the front, the back, and protected areas. Specifically, Victim
had bruises near her eyebrow, on her left jaw, right arm, shin, ankle, back of her leg, and
back. Victim’s right arm was fractured in three separate places. In Victim’s chest, she had
developed “pneumothoraces” that disrupted her breathing. 4 Both of Victim’s eyes
displayed hemorrhaging in multiple layers of the retina. Victim also had a skull fracture
and extensive internal bleeding in her head. By the time Victim arrived at the hospital, all
of her brain was injured. Victim had numerous contusions, areas of subdural bleeding, and
subdural hemorrhages on both sides of her head.
Dr. Donaruma also testified about her conclusions regarding the cause of Victim’s
injuries. Dr. Donaruma opined that a single fall most likely did not cause Victim’s injuries.
According to Dr. Donaruma, a fall would be a highly implausible explanation for
Defendant’s injuries because it would not “adequately describe how a child could get both
left and right, front and back, multi-system injury in the course of a single event.” Dr.
3
Dr. Donaruma was a board-certified pediatrician with an additional board
certification in the subspecialty of child-abuse pediatrics.
4
Dr. Donaruma testified that a “pneumothorax is where the air is inside of your
chest but outside of the lungs because the tiny air sacks in the lungs have ruptured and the
air escaped and that air is trapped and pushing on the lung tissue as they try to inflate.”
5
Donaruma further opined that it was unlikely that Victim’s injuries happened at the same
time or resulted from a single strike or blow. The external bruises on Victim’s body were
“not consistent with the activities of daily living” because they were “located in areas that
are typically protected and are not common injuries in the course of a child’s activity and
playing.” For example, Dr. Donaruma was concerned about the distribution and shape of
the bruising on Victim’s leg because it looked like “she was gripped by the back of her
leg.” Victim’s bruising and abrasions on her back were inconsistent with a fall and were
“completely atypical for accidental injury in the course of daily living.”
Dr. Donaruma concluded that most of Victim’s bruising was consistent with
inflicted trauma. Some of Victim’s injuries, such as the bruise on her forehead in the shape
of a right angle, were pattern injuries caused by Victim having been struck with a specific
object. Dr. Donaruma concluded that such an injury would be inconsistent with Victim
hitting her head on a plastic tote. Victim’s jaw bruises were inconsistent with a fall;
“[t]hat’s something where a child gets held forcefully by the face.” Dr. Donaruma noted
that the severe “spiral” fractures in Victim’s arm were inconsistent with a single fall or
impact, including a fall from a crib. Rather, the fractures in Victim’s arm were most likely
caused by inflicted injury. The doctor concluded that Victim’s pneumothoraces to the chest
were caused by blunt force trauma. Victim’s retinal hemorrhage, skull fracture, subdural
bleeding and contusions were consistent with abusive head trauma and were not likely to
have been caused by a fall.
Dr. Donaruma testified that Victim would have become “limp and minimally
responsive” immediately after suffering the first significant brain injury. Additionally, the
results of Victim’s lab reports, measuring her blood sugar and coagulation levels, were not
6
consistent with an injury occurring within two hours of the test. Finally, Dr. Donaruma
opined that, if Victim had received medical treatment earlier, she could have had a better
outcome. To a reasonable degree of medical certainty, Victim “would have done better
than she did” if she had received earlier medical attention.
Due to the severity and suspicious nature of Victim’s injuries, a public safety officer
was summoned to document Victim’s condition upon her arrival at Phelps County
Regional Medical. This was not the first occasion of suspected abuse or neglect involving
Defendant and Victim. Bundy, who lived in the unit directly above, testified that from
February through April 2006, she regularly heard concerning sounds coming from within
Defendant’s residence. Victim cried loudly and for long periods of time, “more often than
she should have[.]” Through the apartment walls, Bundy heard Victim emit “high-pitched”
and “bloodcurdling” screams. Victim’s crying indicated to Bundy that, on more than one
occasion, Victim was hurt, in pain, and being ignored.
Mullins, who also resided near Defendant in the apartment complex, testified that
Defendant didn’t have much patience with kids and “would yell a lot” because her “nerves
would be frayed[.]” Mullins recounted that, on one occasion, she inquired about large,
noticeable marks on Victim’s face. During a separate incident, Mullins observed
Defendant pick Victim up by the shoulder, shake her, and yell at Victim to “shut up and
get the fuck off of her[.]”
A Children’s Division caseworker, Christine Abmeyer (Abmeyer), was assigned to
assist and monitor Defendant and Victim following a hotline call in January 2006. Victim
had sustained grease burns to her hands, face and throat when Defendant was cooking with
hot oil. Although the extensive burns made Victim “unrecognizable,” Defendant did not
7
take her to the hospital until the day after the incident. When Victim was admitted to the
hospital’s burn unit, it was discovered that she had additional existing injuries including
abrasions and bruising to her sternum. Upon Victim’s release from the hospital, Defendant
repeatedly failed to bring Victim to scheduled follow-up appointments and was “apathetic”
in cooperating with the Children’s Division. Because of Defendant’s history of failing to
take Victim to the doctor in a timely manner, Abmeyer formulated a safety plan. The safety
plan dictated that, if any health concerns presented with Victim, Defendant would take
Victim to the doctor immediately. Defendant agreed to the safety plan, but she did not
utilize the resources provided by the Children’s Division and “seemed to be not caring.”
On March 30, 2006, Abmeyer closed the case as a result of Defendant’s noncompliance.
The trial testimony included a review of the multiple interviews that Defendant
gave to authorities. In Dr. Donaruma’s interview with Defendant, she gave a history that
was “unusual … not typical for a mom with a child in the intensive care unit [and]
disturbing.” When asked to generally describe Victim, Defendant responded that Victim
was ornery and mischevious, and “didn’t like [Defendant] anymore because she was
pregnant.” Defendant referred to Victim as her “little butt plug” because she often followed
Defendant closely. Dr. Donaruma found Defendant’s comments to be “really disrespectful
of the child in general.” Moreover, Dr. Donaruma testified that Defendant did not seem
upset about what was wrong with Victim, was “[n]ot very focused on the child,” and
instead tried to be engaging and distract them from the type of questions they were asking
about the injury.
Defendant told Dr. Donaruma that on April 5, Victim had “a great day” with a
typical schedule. The following day, Defendant claimed that Victim was comfortable in
8
her crib at 6 a.m., and when Defendant checked on Victim at 10 a.m., she was awake and
quietly playing in her crib. According to Defendant, Victim ate throughout the day and
took a nap at 3:30 p.m. Defendant said that around 5 p.m., she found Victim out of the
crib, on the floor, draped over her toy box. Defendant said she thought Victim’s crib broke.
Defendant’s explanation did not make sense to Dr. Donaruma because “this one little sort
of possible tumble from a broken crib wasn’t enough to explain just the distribution and
number and type of injury we were seeing.” Throughout the interview with Dr. Donaruma,
Defendant did not ask any questions about Victim or her prognosis.
Defendant also was interviewed by Detective Richard Hanrahan (Hanrahan), a
police officer who specialized in forensic child-abuse investigations. Defendant was
initially hesitant to talk with Hanrahan because Defendant’s parents had advised her not to
speak with anyone about the incident.
Defendant made the following statements to Hanrahan. On the night of April 5,
Alford and Defendant stayed at her apartment with Victim. On the morning of April 6,
Victim woke up around 10 a.m. and was a little congested, so Defendant gave Victim some
allergy medicine. Defendant and Victim lay down for a nap between 11 a.m. and noon.
Victim woke up around 1 p.m., but was still a little sleepy, so Defendant moved Victim to
her crib and put her down for another nap. Defendant and Alford stayed at the apartment
throughout the day on April 6. Around 5 p.m., Defendant found Victim “on the floor next
to the crib and the toy box.” Victim’s “head was to the side and on the floor and she was
basically upside down with her lower legs over the toy box and somehow dropped there
next to the crib and the toy box.” Defendant and Alford then took Victim to the living
room and tried to search for home remedies “for things like concussion because they feared
9
she may have suffered a concussion falling from the crib.” Defendant had a hard time
recounting the time frame because “she knew there was a pause between the time the baby
was found and the time the ambulance was called.”
When Hanrahan asked Defendant how she believed Victim had been injured,
Defendant said she believed Victim had climbed onto the railing of her crib, and the railing
had given way. Hanrahan was concerned “that the story of falling from a crib didn’t match
the gravity of the injuries that the child had suffered.” Hanrahan and other officers
investigated Defendant’s apartment and examined Victim’s crib. The railing was hanging
loose from the headboard and footboard. The top railing was “obviously removed from
the frame.” There was no cracking or damage to the rail. While disassembling the crib,
the investigators discovered that one of the bottom slats in the crib was partially broken.
Hanrahan testified that he “was concerned that if a child were thrown into that bed hard
enough to break a slat underneath the baby bed mattress, that that could be our mechanism
of injury.”
While investigators were at the apartment complex, Defendant was searching the
internet on a computer. She told Hanrahan about a crib recall, and printed it at his request.
Hanrahan testified that the recall was directed at risks involving crib mattresses and
bumpers and was not relevant to the railing being disconnected.
Following the investigation at the residence, Defendant was interviewed by
Hanrahan a second time on April 7. Defendant was agitated. When asked if Alford had
hurt Victim, Defendant “became angry” and responded, “[Alford] loves that baby. [Alford]
would never hurt that baby.” Defendant also stated that Alford was “a good man.” The
interview ended with Defendant screaming, yelling and cursing. Later, Defendant told
10
Hanrahan that “she had lied about [Alford], that he is actually very violent[,]” but that “he
still wouldn’t hurt [Victim], he loved [Victim].”
Stephen Meyer (Meyer), a computer forensic investigator, also testified. Meyer
had examined the temporary internet folders and internet history stored on the computer in
Defendant’s residence between 7:30 p.m. on April 5, to just after midnight on April 7.
Defendant’s email inbox had been accessed on the computer. On April 5, between 7:30
p.m. and midnight, pornographic material was accessed. Subsequently, between 2 and 3
a.m. on April 6, internet searches were conducted for “www.seizures.net,”
“babyshakensyndrome.com,” and “shaken baby syndron [sic].” Between 10 and 10:45
a.m. that day, additional searches were conducted for “homemade remedies for broken
shoulders,” “broken shoulders,” “how to spot a broken bone,” “first aid for broken bones,”
“child concussion,” and “symptoms of neck injury.” At about 11 a.m., a search was
conducted for “St. Louis obituary” and birth certificates. At approximately 4 p.m. on April
6, a social networking site called “hotornot.com” was accessed, and the viewer looked at
pictures predominantly of males. At approximately 6:30 p.m. on April 6, additional
pornographic material was accessed. Just prior to midnight on April 6, a search was
conducted for “recalls on Graco baby products.”
At the time of trial, Victim was twelve years old. As a result of her injuries, Victim
required total care. Victim was blind, incontinent, developmentally delayed, unable to feed
herself, and unable to walk. She could not be left unattended. She suffered from daily
seizures and painful muscle contractions, and had to undergo a hip replacement. There
was also testimony that, in the time since Victim’s injuries, Defendant married Alford and
had three children with him.
11
In Point 1, Defendant contends the State’s evidence was insufficient to prove
beyond a reasonable doubt that she “participated in any elements of the crime of assault in
the first degree because the evidence only placed her at the scene of the crime.” We
disagree.
Defendant was found guilty of assault in the first degree. See § 565.050. A person
commits this crime if she “attempts to kill or knowingly causes or attempts to cause serious
physical injury to another person.” § 565.050.1. The charge against Defendant was
submitted to the jury on a theory of accomplice liability. See § 562.041.1. The underlying
premise for this statutory form of criminal liability is that all persons who act in concert to
commit a crime are equally guilty. See State v. Meuir, 138 S.W.3d 137, 143 (Mo. App.
2004). “Missouri eliminated the distinction between principals and accessories in 1979,
and it is now the law that all persons who act in concert are equally guilty.” State v.
Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000); see State v. Turrentine, 524 S.W.3d 55,
60 (Mo. App. 2016). Pursuant to an accomplice liability theory, a person is “criminally
responsible” for the conduct of another when “[e]ither before or during the commission of
an offense with the purpose of promoting the commission of an offense, he aids or agrees
to aid or attempts to aid such other person in planning, committing or attempting to commit
the offense.” § 562.041.1(2). Thus, “[a]n accomplice is one who, before or during the
commission of a crime, intentionally and knowingly aids or encourages the commission of
a crime[.]” Meuir, 138 S.W.3d at 143.
The evidence need not directly place the defendant in the act of committing the
crime. State v. Carter, 849 S.W.2d 624, 627 (Mo. App. 1993). Any evidence, either direct
or circumstantial, that shows “affirmative participation” in aiding the principal to commit
12
the crime is sufficient to support a conviction. State v. Puckett, 611 S.W.2d 242, 245 (Mo.
App. 1980); see also State v. Parsons, 152 S.W.3d 898, 903 (Mo. App. 2005); Meuir, 138
S.W.3d at 143. Moreover, the requirement of affirmative participation may be satisfied by
inference. See Carter, 849 S.W.2d at 627.
An accused’s affirmative participation in an offense may be reasonably
inferred from: his presence at the scene of the offense; his association with
others involved before, during, and after the offense; his conduct before the
offense; his conduct during the offense, including making no effort to assist
the victims; and his conduct after the offense, including fleeing from the
scene and failing to talk to the police relatively soon after the incident.
In re Interest of S.B.A., 530 S.W.3d 615, 625 (Mo. App. 2017); see also State v. Rainey,
545 S.W.3d 916, 924 (Mo. App. 2018); Turrentine, 524 S.W.3d at 60; Meuir, 138 S.W.3d
at 143. Presence at the scene can give rise to an inference of affirmative participation when
combined with other circumstances connecting the defendant to the crime. State v. Dixson,
546 S.W.3d 615, 619 (Mo. App. 2018); S.B.A., 530 S.W.3d at 625.
In the case at bar, we conclude that the evidence adduced at trial was sufficient to
sustain Defendant’s conviction for first-degree assault under a theory of accomplice
liability. Based upon our review of the record, the State introduced ample evidence, apart
from Defendant’s mere presence at the scene of the crime, which tended to prove that she
affirmatively participated in assaulting Victim.
In evaluating Defendant’s guilt, a jury could consider Defendant’s behavior before
the incident. S.B.A., 530 S.W.3d at 625. Neighbors testified that, in the months leading
up to the assault on Victim, alarming sounds, including “bloodcurdling” screams, emanated
from Defendant’s apartment. Additionally, Victim had previously suffered serious
physical injury while in Defendant’s care, and Defendant failed to abide by the safety plan
13
from the Children’s Division informing Defendant of the importance of prompt medical
attention.
The jurors could have drawn numerous inferences supporting Defendant’s guilt
from the circumstances surrounding Victim’s injuries. Defendant admitted that she stayed
with Victim all day and night on April 5, until allegedly discovering Victim’s injuries on
the afternoon of April 6. Defendant additionally admitted that she and Alford were the
only people present in the apartment at the time of the incident. Defendant was
“standoffish” at her door on the morning of April 6, and was hesitant to call 9-1-1.
Although Defendant had previously been reprimanded for failing to seek medical attention
for Victim, Defendant did not call 9-1-1 until Bundy advised Defendant that it would be in
her interest to do so. “An attempt by a defendant to cover up his or her involvement is a
factor that may, in conjunction with other evidence, support the inference of affirmative
participation by an accomplice.” State v. Smith, 108 S.W.3d 714, 721 (Mo. App. 2003);
see also Parsons, 152 S.W.3d at 905.
The jurors could also draw inferences supporting Defendant’s guilt from her
behavior towards doctors and investigating authorities on and after the day of the incident.
Defendant’s account of the occurrences on April 6 changed during the various interviews.
Both Dr. Donaruma and Hanrahan noted Defendant’s unusual behavior during interviews,
such as not asking questions about Victim, appearing unconcerned, and attempting to
deflect questions about Victim’s injuries. The jurors’ verdict is supported by the
reasonable inference that Defendant’s behavior evinced a desire to conceal her role in the
offense and, thereby, demonstrated consciousness of guilt.
14
The State also presented evidence that Defendant’s proffered explanation for
Victim’s injuries was unconvincing and false. The jurors reasonably could have inferred
that Defendant’s story – about Victim falling from her crib – was developed after the fact
and did not comport with the type and severity of injuries that Victim suffered. The recall
that Defendant mentioned to Hanrahan as an attempted explanation for Victim’s injuries
bore no relation to the condition of the crib, as observed by police. Moreover, the crib
exhibited additional damage, which could have partially explained Victim’s injuries
through an assault by Defendant. “Exculpatory statements, when proven false, evidence a
consciousness of guilt[.]” State v. Rodden, 728 S.W.2d 212, 219 (Mo. banc 1987); State
v. Buchli, 152 S.W.3d 289, 297 (Mo. App. 2004). Additionally, “[g]uilt may be inferred
when an accused attempts to deceive the police, as in making a false exculpatory
statement.” State v. Hibbert, 14 S.W.3d 249, 253 (Mo. App. 2000).
A juror also could consider the fact that Defendant continued to associate with
Alford following Victim’s injuries. Even though Defendant and Alford were the only
people present in the apartment when Victim suffered severe, life-altering injuries, and
Defendant admitted that Alford is “very violent[,]” Defendant ended up marrying Alford
and having three children with him. Companionship before and after an offense is a
circumstance from which one’s participation in a crime may be inferred. S.B.A., 530
S.W.3d at 625; Parsons, 152 S.W.3d at 905.
When reviewing the sufficiency of the evidence to support a criminal conviction,
we give great deference to the trier of fact. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc
1998). We are not to act as a “‘super juror’ with veto powers” over the fact-finder. State
v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993). Here, the jury chose not to believe
15
Defendant’s story. Although isolated facts viewed individually, such as Defendant’s
presence at the scene, may not be sufficient by themselves to support the verdict, “a
conviction may rest upon accumulated, interdependent facts, no one of which alone may
create more than a suspicion of guilt.” State v. Jackson, 519 S.W.2d 551, 557 (Mo. App.
1975); see Parsons, 152 S.W.3d at 905; State v. Plant, 694 S.W.2d 751, 755 (Mo. App.
1985). As previously explained, the evidence establishes considerably more than mere
presence by Defendant at the scene of the crime.
In sum, the jurors reasonably could have inferred that Defendant aided or acted
together with Alford to assault Victim based on, inter alia, the following evidence: (1)
Defendant’s admission that she and Alford were the only people present at the scene during
the time the crime occurred; (2) Defendant’s association with Alford before, during, and
long after the commission of the crime; (3) Defendant’s statements to investigators that
Alford did not commit the crime; (4) the incriminating internet searches found on the
computer in Defendant’s residence, in close proximity to the time her email was accessed;
and (5) Defendant’s attempt to conceal her involvement in the crime by changing her story
multiple times and by providing an unconvincing theory as to how the injury occurred.
Here, our review of the record demonstrates that the “totality of the circumstances”
provides sufficient evidence of Defendant’s guilt. See State v. Shockley, 98 S.W.3d 885,
890 (Mo. App. 2003). Thus, we conclude that the State presented sufficient evidence from
which the jury could find, beyond a reasonable doubt, that Defendant affirmatively
participated in assaulting Victim to support a finding of guilt based on an accomplice
liability theory. Point 1 is denied.
16
Point 2
Defendant’s second point contends the trial court plainly erred in failing to sua
sponte declare a mistrial or issue a curative instruction following an alleged misstatement
of law made by the prosecutor during the rebuttal portion of closing argument. The
following additional facts are relevant to this point.
Instruction No. 5 addressed the issue of accomplice liability. This instruction
stated:
A person is responsible for her own conduct and she is also responsible for
the conduct of another person in committing an offense if she acts with the
other person with the common purpose of committing that offense or if, for
the purpose of committing that offense, she aids or encourages the other
person in committing it.
Instruction No. 7 was the verdict-directing instruction for first-degree assault. 5 This
instruction stated, in relevant part:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 6, 2006, in the County of Phelps, State of
Missouri, the defendant or [Alford] attempted to cause serious physical
injury to [Victim] by striking her, and
Second, that the defendant or [Alford] in the course of such conduct caused
serious physical injury to [Victim],
then you are instructed that the offense of Assault in the First Degree has
occurred, and if you further find and believe from the evidence beyond a
reasonable doubt:
Third, that with the purpose of promoting or furthering the commission of that
assault in the first degree, the defendant acted together with or aided
[Alford] in committing the offense,
then you will find the defendant guilty of Assault in the First Degree.
5
The jury also was instructed on assault in the second and third degree.
17
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
guilty of that offense.
The jurors also were given Instruction No. 12. In relevant part, it stated that the attorneys’
arguments were not evidence and that it was the duty of the jurors “to be governed in your
deliberations by the evidence as you remember it, the reasonable inferences which you
believe should be drawn therefrom, and the law as given in these instructions.”
During the initial portion of the State’s closing argument, the prosecutor told the
jurors the evidence demonstrated that either: (1) Defendant acted alone to hurt Victim by
beating her; or (2) Defendant and Alford acted together to hurt Victim. The prosecutor
then stated:
No one wants to believe it. No one wants to think that a mother would do
that to her child. No one wants to think that a mother would hurt her child
and leave her for hours and hours and hours, dying. No one wants to believe
that a mother would help her boyfriend, even if she didn’t do it herself. No
one wants to believe that a mother would help her boyfriend do that to a
child.
But the evidence in this case is so clear, ladies and gentlemen, that’s exactly
what she did. That’s exactly what she did. She and [Alford] beat [Victim]
so badly that this is what she is left with.
In arguing the law of accomplice liability, the prosecutor then continued:
You can infer lots of things from these facts, ladies and gentlemen. You
have to find one of the two of them or both of them did this and that they
acted together or aided each other.
How do we know they aided? We can also infer lots of things from what
happened after, about why they were aiding each other. She lies. She lies
and she lies and she lies and she lies. If you didn’t do anything, if you didn’t
play any role, if you weren’t helping in this, why do you lie over and over
and over and over again?
….
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And we know that they were acting together because of how they behaved
after the fact. She lied. She covered it up. She married him. And she had
more children with him.
During Defendant’s closing argument, defense counsel also addressed the accomplice
liability issue:
They want you to say that because she didn’t get help for [Victim] that that’s
evidence that during the time this offense occurred she was aiding and
encouraging [Alford] in committing it.
….
You heard a lot of evidence that [Defendant] didn’t get her any help the next
day. Be clear that that is not what she is charged with. She is not charged
with not getting her help.
During the rebuttal portion of the State’s closing argument, the prosecutor offered the
following response to defense counsel’s argument:
[I]f [Alford] did it and she watched him do it and she didn’t stop him, that’s
something you get to consider in whether she was aiding him, whether she
was helping him. That’s something you get to consider. If she is there and
she is watching it happen and she is not stopping it, she is not intervening
it, she is not calling 9-1-1, that’s helping [Alford] do it. That’s furthering
the commission of the crime.
(Emphasis added.) There was no objection to the italicized argument, and Defendant’s
motion for new trial did not include this issue.
In Point 2, Defendant contends the trial court plainly erred during the rebuttal
portion of the State’s closing argument because the prosecutor’s comment misstated the
law of accomplice liability, and the trial court was required to sua sponte declare a mistrial
or issue a curative instruction. Defendant acknowledges the lack of preservation and
requests plain error review.
19
Rule 30.20 provides, in pertinent part, that “plain errors affecting substantial rights
may be considered in the discretion of the court when the court finds that manifest injustice
or miscarriage of justice has resulted therefrom.” Id. “A claim of plain error places a much
greater burden on a defendant than an assertion of prejudicial error.” State v. Wright, 216
S.W.3d 196, 199 (Mo. App. 2007). Plain error and prejudicial error are not synonymous
terms, and mere allegations of error and prejudice will not suffice. Id. “Plain error must
be evident, obvious, and clear.” State v. Walter, 479 S.W.3d 118, 131 (Mo. banc 2016).
Defendant bears the burden of establishing that the trial court committed an evident,
obvious and clear error. See State v. Thurman, 272 S.W.3d 489, 498 (Mo. App. 2008).
Defendant also bears the burden of proving the existence of a manifest injustice or a
miscarriage of justice. State v. Stanley, 124 S.W.3d 70, 77 (Mo. App. 2004). According
to Defendant, the trial court’s failure to sua sponte declare a mistrial or give a curative
instruction was plain error resulting in manifest injustice. We disagree.
“The declaration of a mistrial is a drastic remedy that will only be granted in
extraordinary circumstances in which it is the only way to remove prejudice to the
defendant.” State v. Hatch, 54 S.W.3d 623, 630 (Mo. App. 2001). The trial court is in the
best position to assess the prejudicial effect of the prosecutor’s statements. State v.
McLarty, 327 S.W.3d 557, 570 (Mo. App. 2010). Further, a “defendant’s failure to object
to an improper argument is often strategic, and uninvited intervention may emphasize the
matter in a way the defendant chose not to.” State v. Carter, 415 S.W.3d 685, 691 (Mo.
banc 2013); see State v. Hall, 319 S.W.3d 519, 523 (Mo. App. 2010) (failure to “properly
object to closing argument at the time it is made to a jury results in a waiver of any right to
complain of the argument on appeal” and plain error review “is discouraged because the
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trial court’s options are narrowed to uninvited interference with summation”).
Furthermore, double jeopardy may bar retrial if the judge in a criminal case grants a mistrial
without the defendant’s request or consent. State v. Lovell, 414 S.W.3d 577, 579 n.4 (Mo.
App. 2013). For all of these reasons, “[a] conviction will be reversed based on plain error
in closing argument only when it is established that the argument had a decisive effect on
the outcome of the trial and amounts to manifest injustice.” State v. Edwards, 116 S.W.3d
511, 536-37 (Mo. banc 2003) (emphasis added); State v. Walter, 479 S.W.3d 118, 124
(Mo. banc 2016). Such an effect is demonstrated where there is a reasonable probability
the verdict would have been different in the absence of the argument. State v. Chism, 252
S.W.3d 178, 186 (Mo. App. 2008). “Usually, misstatements of the law are not deemed
reversible error when the proper law is given to the jury because we assume the jury
followed the law as stated in the instructions.” Id. “In reviewing closing arguments, this
Court examines the context of the argument made in light of the entire record.” Walter,
479 S.W.3d at 124.
The prosecutor did not misstate the law. We do not agree with Defendant’s
interpretation of the prosecutor’s comment. Defendant contends that the challenged
comment was a “blatant” misstatement of the law because it “left the jury with the
understanding that they could convict [Defendant] of assault based solely on the fact that
the evidence established she was present at the scene of the crime and did not intervene.”
Viewing the challenged statement in the context of the entire record, including the
prosecutor’s closing argument as a whole, it is evident that the prosecutor was not arguing
that Defendant’s mere presence and failure to intervene were sufficient to prove assault
under an accomplice liability theory. Rather, the prosecutor correctly argued that
21
Defendant’s actions during the time of the offense and after, including her presence at the
scene, attempts to conceal the incident, failure to aid Victim, and continued association
with Alford, could be considered as circumstantial evidence from which jurors could infer
that Defendant acted together with Alford to commit the offense. See S.B.A., 530 S.W.3d
at 625 (affirmative participation may be inferred from “conduct during the offense,
including making no effort to assist the victims”); see also Parsons, 152 S.W.3d at 903;
Meuir, 138 S.W.3d at 143. It was permissible for the prosecutor to emphasize Defendant’s
presence at the scene and failure to promptly aid Victim to support the State’s theory that
the totality of the evidence demonstrated Defendant, acting either alone or together with
Alford, assaulted Victim by beating or repeatedly striking her. “A prosecutor is allowed
to argue the evidence and all reasonable inferences from the evidence during closing
arguments.” State v. Brown, 337 S.W.3d 12, 14 (Mo. banc 2011); see Hall, 319 S.W.3d
at 522-23 (“the permissible field of argument is broad, and so long as counsel does not go
beyond the evidence and issues drawn by the instructions or urge prejudicial matters … he
is permitted wide latitude in his comments”). Here, the prosecutor properly argued the
evidence to discredit Defendant’s story that Victim fell from her crib, and to counter the
defense theory that Defendant was present in the apartment with Alford, but was somehow
unaware of his assault on Victim.
Furthermore, the prosecutor made the challenged comments during her rebuttal to
Defendant’s closing argument, after defense counsel argued, “[s]he is not charged with not
getting [Victim] help.” The State was responding to Defendant’s argument by highlighting
that Defendant’s actions after the offense could be considered as evidence of affirmative
participation in the assault. The court did not commit error, plain or otherwise, in allowing
22
the argument. See State v. Howell, 441 S.W.3d 217, 219 (Mo. App. 2014) (“prosecutor is
given even more latitude when responding to issues raised in the defendant’s closing
argument”); Hall, 319 S.W.3d at 523-24 (when reviewing complained-of comments made
in rebuttal, the trial court may consider whether the State’s comments were invited and the
State may go further “in answering the argument of the defendant than would be normally
allowed [and] has considerable leeway to make retaliatory arguments at closing … even if
comment would be improper”).
Finally, even assuming arguendo that the prosecutor’s comments were improper,
our decision would not change. Defendant has failed to demonstrate the alleged
misstatement had a decisive effect on the outcome of the trial (i.e., in the absence of the
statement, there is a reasonable probability the verdict would have been different). See
Walter, 479 S.W.3d at 124; State v. Smith, 422 S.W.3d 411, 417 (Mo. App. 2013); Chism,
252 S.W.3d at 186. As discussed above in Point 1, a jury could reasonably conclude that
the evidence did not simply place Defendant at the scene of the crime; the evidence was
sufficient to demonstrate that Defendant acted together with Alford to assault Victim.
Moreover, manifest injustice or a miscarriage of justice generally will not be found if
counsel misstates the law in closing argument but the circuit court properly instructs the
jury. Peterson v. Progressive Contractors, Inc., 399 S.W.3d 850, 861 (Mo. App. 2013).
As noted previously, the jury was properly instructed: (1) on the principles of accomplice
liability; and (2) that the arguments of the attorneys were not evidence. “The jury is
presumed to follow the trial court’s instructions.” State v. McFadden, 391 S.W.3d 408,
424 (Mo. banc 2013); see Chism, 252 S.W.3d at 186. There is no indication in this case
that the jurors did not follow the court’s instructions. See McFadden, 391 S.W.3d at 421.
23
Accordingly, the trial court did not plainly err by failing to sua sponte declare a mistrial or
issue a curative instruction concerning the challenged comments. Point 2 is denied.
The judgment of the trial court is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
DANIEL E. SCOTT, J. – CONCUR
WILLIAM W. FRANCIS, JR., P.J. – CONCUR
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STATE OF MISSOURI, Plaintiff-Respondent v. CHRISTA ELAINE MUELLER
Combined Opinion