STATE OF MISSOURI,                                )
                                                  )
          Plaintiff-Respondent,                   )
                                                  )
vs.                                               )       No. SD32862
                                                  )
JOANIE DANIELLE FOWLER,                           )       Filed: June 26, 2014
                                                  )
          Defendant-Appellant.                    )

              APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY

                          Honorable David A. Dolan, Circuit Judge

AFFIRMED

          Joanie Danielle Fowler ("Defendant") appeals from her conviction and

sentence for one count of first-degree child endangerment. See § 568.045.1.1

Defendant raises two points on appeal: (1) there was insufficient evidence to

support her conviction and (2) the trial court abused its discretion when it

admitted evidence of alleged prior misconduct. We disagree with her arguments

and affirm the trial court's judgment.

                         Factual and Procedural Background

          At the time of the events giving rise to the charge in this case, Defendant

had been living with her boyfriend, Michael Dillon Taylor ("Taylor"), for

approximately two months in his trailer. Defendant's three small children from

1   All statutory references are to RSMo Cum. Supp. (2009).
prior relationships, including Victim who was about two years old, also lived with

the couple.

       On September 30, 2009, sometime around 6:00 in the morning,

Defendant awoke to the sound of Victim crying. She looked into the living room

where the children were sleeping on a futon. Taylor was holding Victim and

patting her on the back, so Defendant lay back down. At some point Victim

stopped crying. A short time later, Defendant saw Victim limp and unconscious

in the living room, and saw a hand print on Victim's face and a bruise on her

temple.

       Defendant asked Taylor what happened. Taylor admitted hitting Victim in

the face. Defendant lay down with Victim for a little while and tried repeatedly to

wake her up. Victim had difficulty breathing, then stopped breathing at which

time Defendant began cardio pulmonary resuscitation ("CPR") as she was trained

as a certified nurse's assistant. Defendant listened to Victim's heart; sometimes it

raced and sometimes it was very slow. Victim's pulse disappeared, but Defendant

was able to get it back. Defendant told Taylor they needed to take Victim to the

hospital, but Taylor kept repeating he was going to jail, and he did not want to go

to jail. Defendant and Taylor discussed what they would tell authorities had been

the cause of Victim's injuries.

       At 6:54 a.m. Defendant and Taylor called Defendant's father. They then

called Taylor's mother. Taylor's mother came to the home. Defendant's father

called back and told Defendant she needed to call 911. Defendant called 911

between 7:10 and 7:20 a.m.



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      Chris Massey ("Massey"), a firefighter with the Wardell Fire Department

and a trained emergency medical technician, was the first to arrive on the scene.

Taylor led Massey into the home where Massey found Victim lying on the floor in

the master bedroom. When Massey realized Victim was not breathing and did

not have a pulse, he told Defendant to call 911 again to request a medical

helicopter. Massey immediately started CPR.

      Massey then asked Defendant how long Victim had been in this condition.

Defendant stated Victim "had been breathing strangely or funny off and on for

about an hour." As he treated Victim, Massey noticed "some minor abrasions

and discoloration to the left side of her face." Massey asked what had happened,

and Taylor stated "they had been in an ATV accident earlier that morning."

      About ten minutes later, an ambulance arrived. The paramedics took

Victim to the ambulance. Victim was "[u]nconscious, unresponsive, pulseless,

[and] apneic." The paramedics intubated Victim to help her breathe and gave her

medications to assist her heart. The paramedics were able to get a pulse back,

but they were never able to get Victim to breathe on her own.

      Lieutenant Ryan Holder ("Lieutenant Holder") of the Pemiscot County

Sheriff's Department arrived on the scene about the same time as the ambulance.

Defendant told Lieutenant Holder that Victim had fallen off a four-wheeler motor

vehicle. Lieutenant Holder observed Victim and saw what appeared to be a hand

print on Victim's face as if Victim had been slapped or hit. Lieutenant Holder

told Defendant the injuries did not seem consistent with a four-wheeler accident.

Ultimately, Defendant told Lieutenant Holder she had not been honest with him.



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       A medical helicopter arrived around 8:00 a.m., and Victim was flown

directly to Le Bonheur Children's Hospital in Memphis, Tennessee. Dr. Karen

Lakin ("Dr. Lakin") consulted on the treatment of Victim. When Dr. Lakin

examined Victim, Victim "was in extremely critical condition." Victim had deep

bruising on her face and forehead. She also had numerous bruises on her back.

Victim "had some very striking linear marks across" the left side of her face. The

nature of the injuries was suggestive of abuse. Based on her examination of

Victim and her review of x-ray and radiology findings, Dr. Lakin diagnosed

Victim with subdural hemorrhage and cerebral edema. On October 3, 2009,

Victim died of her injuries.

       Defendant was charged with first-degree endangering the welfare of a

child "by failing to contact medical help for at least 30 minutes after knowing that

[Victim] had suffered a head injury." On April 29 - 30, 2013, Defendant was tried

by a jury and found guilty. The trial court sentenced Defendant to seven years

incarceration. Defendant appeals.

                                    Discussion

  Point I: There Was Sufficient Evidence to Support the Conviction

       In her first point, Defendant argues there was insufficient evidence to

support her conviction. Specifically, Defendant states "there was insufficient

evidence from which a juror could find beyond a reasonable doubt that

[Defendant] 'knowingly' created a 'substantial risk' to [Victim's] life or body or

health when she did not call 911 right away, and instead made attempts to revive

[Victim] by herself, and then called her parents for help, nor was there evidence

that there was an actual or practically certain risk of danger to the child by this

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delay or that if [Defendant] had called 911 sooner, that the circumstances would

have changed." These arguments are without merit because they ignore the

standard of review.

       "In a challenge to the sufficiency of evidence at trial, this [C]ourt's role is

limited to a determination of whether the state presented sufficient evidence

from which a reasonable trier of fact could have found [the defendant] guilty

beyond a reasonable doubt." State v. Buhr, 169 S.W.3d 170, 175 (Mo. App.

W.D. 2005). In conducting such review, this Court views the evidence in the light

most favorable to the jury's verdict, rejecting all contrary evidence and

inferences. Id.

       "The elements of endangerment of a child in the first degree are (1) the

defendant engaged in conduct; (2) in so doing, the defendant created a

substantial risk to the life, body, or health of a child; (3) the victim was less than

seventeen years old; and (4) the defendant acted knowingly with regard to the

facts and circumstances." State v. Johnson, 402 S.W.3d 182, 187 (Mo. App.

E.D. 2013); § 568.045.1. In the context of this statute, substantial means "not

seeming or imaginary" and risk means "the possibility of loss, injury,

disadvantage or destruction." State v. Rinehart, 383 S.W.3d 95, 101 (Mo. App.

W.D. 2012) (quoting State v. Brock, 113 S.W.3d 227, 232-33 (Mo. App. E.D.

2003)). Additionally, a person acts knowingly:

       (1)    With respect to his conduct or to attendant circumstances
              when he is aware of the nature of his conduct or that those
              circumstances exist; or

       (2)    With respect to a result of his conduct when he is aware that
              his conduct is practically certain to cause that result.


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§ 562.016.3. "There is no bright line test to determine whether or not a person's

actions knowingly create a substantial risk to the health of a child." Rinehart,

383 S.W.3d at 103. Rather, the courts consider the totality of the circumstances

of each case. Id.

       "A knowing failure to obtain adequate medical care can support a

conviction for endangerment of a child when the failure to act creates a

substantial risk to the life, body, or health of a child." Johnson, 402 S.W.3d at

187. A defendant's knowledge is usually inferred from circumstantial evidence,

and the jury "may also make inferences regarding a defendant's level of

awareness based upon the child's appearance." Rinehart, 383 S.W.3d at 103.

In fact, in Johnson, the Eastern District of this Court held that "[a] reasonable

juror could find that an unconscious child requires immediate medical attention

and could further find, beyond a reasonable doubt, that waiting thirty minutes

before calling 911 creates a substantial risk to the life and health of the child."

402 S.W.3d at 187.

       Here, as in Johnson, there was ample evidence from which a rational

juror could find Defendant knowingly created a substantial risk to Victim's life,

body, or health. Defendant found Victim unconscious and limp with a handprint

on her face. Defendant knew Taylor had struck Victim. Victim stopped

breathing. Defendant recognized the Victim was hurt and told Taylor they

needed to take Victim to the hospital. Yet, instead of getting immediate medical

attention for Victim, Defendant delayed and helped Taylor create a story to hide

his culpability. Furthermore, the injury occurred around 6:00 a.m., but the 911

call was not made until sometime between 7:10 and 7:20. This evidence was

                                           6
sufficient to show Defendant knew Victim needed medical attention but delayed

her efforts to seek that attention for at least thirty minutes.

       Additionally, the expert testimony presented at trial showed the delay in

obtaining medical care caused additional risk to Victim. Dr. Lakin testified

cerebral edema is related to subdural hemorrhage and is "exacerbated over time."

She further testified it is very important for a child with injuries as severe as

Victim's to receive immediate medical attention and, that with early medical

attention, the complications associated with subdural hemorrhage and cerebral

edema can be limited by use of surgeries or medicines. However, in this case,

Victim was showing signs of brain stem compression when she arrived at the

hospital. "[A]t that point it is very difficult or impossible to reverse[.]" Dr. Lakin

stated a delay of even a few minutes can make a difference in the outcome. She

further opined that if 911 had been called earlier it probably would have made a

difference in the outcome of Victim's case. This testimony demonstrated that the

repercussions of Defendant's delay in calling 911 were "not seeming or imaginary"

and increased the possibility of loss, injury and disadvantage. See Rinehart,

383 S.W.3d at 101. Thus, there was sufficient evidence to show Defendant

knowingly engaged in conduct which caused a substantial risk to Victim's life,

body, or health.

       In support of her argument to the contrary, Defendant first relies on Dr.

Lakin's testimony that it was possible the outcome would have been the same

even if Defendant had called 911 immediately. This argument is problematic for

two reasons. First, it ignores the standard of review. The testimony upon which

Defendant relies is contrary to the verdict, so it must be disregarded. See Buhr,

                                           7
169 S.W.3d at 175. Second, the argument misconceives the nature of what the

State was required to prove. The State was not required to prove Defendant's

actions caused Victim's death. See State v. Kuhn, 115 S.W.3d 845, 849 (Mo.

App. E.D. 2003) ("The statute does not require severe injuries that endanger a

child's welfare, but rather that the act of the defendant herself creates a

substantial risk of harm."). Rather, the State was required to prove risk, i.e., the

possibility of loss, injury, or disadvantage. Rinehart, 383 S.W.3d at 101. Dr.

Lakin's testimony that it was likely there would have been a better result if

medical attention had been provided earlier supported a conclusion that

Defendant's act created a possibility of loss, injury, or disadvantage in the

treatment of Victim.

       There was sufficient evidence to show Defendant knowingly created a

substantial risk to Victim's life, body, or health. Defendant's first point is denied.

                 Point II: Alleged Prior Bad Acts Evidence

       In her second point, Defendant challenges the admission of evidence

showing Taylor had previously struck one of Defendant's other children. This

point is without merit because the evidence did not definitely associate

Defendant with another crime.

       Appellate review of a trial court’s decision with respect to the admission of

evidence is for abuse of discretion. State v. Middlemist, 319 S.W.3d 531, 540

(Mo. App. S.D. 2010). An abuse of discretion has occurred when the trial court’s

decision is clearly against the logic of the circumstances and is so arbitrary and

unreasonable as to indicate a lack of careful consideration. State v. Turner,

242 S.W.3d 770, 777 (Mo. App. S.D. 2008). “If reasonable persons can differ

                                          8
about the propriety of the action taken by the trial court, then it cannot be said

that the trial court abused its discretion." Id. (quoting State v. Biggs, 91

S.W.3d 127, 133 (Mo. App. S.D. 2002)).

       The following additional facts are relevant to the resolution of this point.

On October 3, 2009, Defendant participated in a videotaped interview with

authorities which included a statement by Defendant that Taylor had whipped

one of Defendant's children in the past. Prior to trial, Defendant filed a motion

in limine seeking to exclude the portion of the video which discussed Taylor’s act

of whipping Defendant’s other child. The trial court overruled the motion.

       The video was played for the jury at trial. Most of the interview focused on

Defendant's description of the events of the morning of September 30, 2009.

Near the end of the hour-long interview the officer asked Defendant if she had

ever seen Taylor discipline the children. Defendant stated that one time, Taylor

had whipped one of Defendant’s other children with a belt, and the whipping left

a bruise. Defendant said she told Taylor he had hit the child too hard, and Taylor

agreed to never do it again. Contrary to Defendant's argument, this evidence did

not constitute evidence of other misconduct.

       A criminal defendant "has 'the right to be tried only on the offense

charged.'" State v. Ellison, 239 S.W.3d 603, 606 (Mo. banc 2007) (quoting

State v. Burns, 978 S.W.2d 759, 760 (Mo. banc 1998)). For this reason, "[t]he

general rule is that evidence of other crimes cannot be used to show that the

defendant has a propensity to commit crime." Middlemist, 319 S.W.3d at 541.

However, "[t]o violate the rule prohibiting evidence of other crimes or

misconduct by the accused, the evidence must show the accused committed, was

                                          9
accused of, was convicted of, or was definitely associated with, the other crimes

or misconduct." State v. Ponder, 950 S.W.2d 900, 911-12 (Mo. App. S.D.

1997).

         Here, the evidence about which Defendant complains did not associate

Defendant with any crime. Defendant told Taylor he had hit the other child too

hard in order to protect that child from any further discipline of that sort.

Nothing in the evidence suggests the other child's bruises needed medical

attention, so Defendant's statements about the incident were not evidence of

Defendant endangering the welfare of a child. See State v. Wilson, 920 S.W.2d

177, 179 (Mo. App. W.D. 1996) (holding there was insufficient evidence of child

endangerment based on failing to seek medical attention for a child where the

child suffered bruising but was later examined and doctors determined the child

did not need further treatment). This evidence did not suggest Defendant

endangered the other child. The statements about Taylor's actions were not

evidence of another crime or bad act committed by Defendant, so the trial court

did not abuse its discretion in admitting them.

         Defendant's second point is denied.

                                      Decision

         The trial court's judgment is affirmed.


MARY W. SHEFFIELD, J. - OPINION AUTHOR

JEFFREY W. BATES, P.J. - CONCURS

DON E. BURRELL, J. - CONCURS




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