STATE OF MISSOURI,                      )
                                        )
                   Respondent,          )
                                        )
      vs.                               )   No. SD32549
                                        )
CHERYL ANNA PATRICK,                    )   FILED: January 5, 2015
                                        )
                   Appellant.           )


            APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY

                         Honorable Stanley Moore, Judge

AFFIRMED

      Convicted of abusing and murdering a two-year-old, Cheryl Patrick appeals,

raising two preserved evidentiary challenges and a plain error claim. None have

merit. We affirm the convictions.

                                    Background

      The victim (A.W.), her father, and Patrick lived together. The father went to

work, leaving A.W. in Patrick’s care, and returned to find his daughter stiff and

unresponsive in her playpen. She died in the hospital two days later from head
injuries due to non-accidental, abusive trauma.        A subdural hematoma, retinal

hemorrhaging, and other injuries were consistent with A.W. having been severely

shaken, thrown, or pushed into something while she was with Patrick, who does not

challenge the sufficiency of proof supporting her convictions.

                   Point I – Admission of Patrick’s Statement

        After Patrick was arrested and booked into jail, she was taken to an interview

room. She signed a waiver of Miranda1 rights and gave a statement which the trial

court refused to suppress and admitted at trial over Patrick’s objection.

        Patrick claims error, alleging that she unequivocally invoked her right to

counsel prior to the statement and did not reinitiate discussions thereafter.

        Under the Fifth Amendment, Patrick had a right to have counsel present

during custodial interrogation. State v. Lanos, 14 S.W.3d 90, 94 (Mo.App. 1999).

To invoke this right, she had to make an unambiguous, specific, and unequivocal

request for counsel. State v. Norman, 431 S.W.3d 563, 569 (Mo.App. 2014). If

Patrick made such a request, questioning had to stop until counsel was made

available or Patrick herself reinitiated discussions with the officers. Id.

        Thus, Patrick’s Point I requires her to show that she (1) unambiguously,

unequivocally, and specifically requested counsel; and (2) did not knowingly,

voluntarily, and intelligently waive her previously invoked right by initiating further

communication. Id.

        Patrick argues step two, but treats step one as a given. For example, her brief

asserts that she “clearly made an unambiguous, unequivocal and specific request for

1   Miranda v. Arizona, 384 U.S. 436 (1966).


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counsel,” repeatedly refers to “her previously invoked right” to counsel, and even

states that “the trial court below accepted that Ms. Patrick’s initial request was

unequivocal ….”

      These ignore the trial court’s express step-one finding against Patrick – that

her “assertion that she wanted an attorney was equivocal.”             This effectively

unchallenged finding ends our inquiry. If Patrick “did not make an unambiguous

and specific request for counsel in dealing with a custodial interrogation, [s]he did

not invoke [her] right to counsel, and no further analysis is required.” Lanos, 14

S.W.3d at 94. Point denied.

               Point II – Admission of Blood and DNA Evidence

      Patrick charges that blood and DNA evidence recovered from the playpen was

neither logically nor legally relevant.

                                   Logical Relevance

      “The greatest failing of the evidence in this regard,” Patrick argues, “is that no

one could testify as to when A.W.’s blood was left on the play pen pad.” This

assertion confuses logical relevance with evidentiary weight.2 It would be a rare

murder trial where the victim’s DNA-matched blood, found near where she lay

dying, bore no logical connection to the case. The evidence was logically relevant.




2 “Logical relevance refers to the tendency to make the existence of a material fact
more or less probable.” Johnson v. State, 406 S.W.3d 892, 902 (Mo. banc 2013)
(internal quotation marks omitted). Weight of the evidence refers to the probative
and persuasive values of evidence. Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc
2014).


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                                    Legal Relevance

      Patrick next claims this evidence was unduly prejudicial and thus legally

irrelevant. See Johnson, 406 S.W.3d at 902.

      Specifically, her point charges that this evidence was “extremely prejudicial”

in that it was used “to corroborate that Ms. Patrick physically abused A.W. causing

her death.” Her supporting argument is similar: that the blood and DNA evidence

“permitted the jurors to find evidence of Ms. Patrick’s guilt of the offenses for which

she was on trial.”

      These sound more like reasons to admit evidence than to exclude it. Evidence

is not “prejudicial” merely because it hurts one’s case. Point II fails.

                        Point III – No Plain Error Review

      Finally, Patrick takes issue with the state’s closing argument that she “beat

[A.W.] to death,” noting that she was charged with shaking and pushing A.W., not

beating her. She admits this claim was not preserved and can be reviewed only for

plain error.

      Plain error relief as to closing argument is rare and, for good reason, usually

denied without explanation. State v. Lovell, 414 S.W.3d 577, 579 & n.4 (Mo.App.

2013). We do not see, nor does Patrick offer, any good reason to depart from this

practice. We deny Point III and affirm the convictions.


DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

WILLIAM W. FRANCIS, JR., P.J./C.J. – CONCURS



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