State v. Aldana

681 S.W.3d 586

STATE of Missouri, Respondent,

v.Joshua Armando ALDANA, Appellant.

WD 85526

Missouri Court of Appeals, Western District.

OPINION FILED: October 10, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied November 21, 2023

Application for Transfer Denied January 30, 2024

Appeal from the Circuit Court of Ray County, Missouri, The Honorable David Harrison Miller, Judge

Kristen Shively Johnson, Jefferson City, MO, for respondent.

James Roy Brown, Kearney, MO, for appellant.

Before Division Four: Gary D. Witt, Chief Judge, Presiding, Cynthia L. Martin, Judge, and Chad Gaddie, Special Judge

Gary D. Witt, Judge

Joshua Armando Aldana ("Aldana") appeals the judgment of the Circuit Court of Ray County, Missouri ("trial court"), convicting him, after a jury trial, of three counts of abuse of a child, section 568.060, and sentencing him to terms of five years, four years, and five years, all to be served concurrently. On appeal, Aldana alleges that the trial court: (1) plainly erred in submitting the verdict director for count I in that it involved "multiple acts" not requiring a unanimous jury verdict; (2) erred in submitting the disjunctive verdict director for count I in that there was not sufficient evidence to support one of the alternatives; (3) plainly erred in submitting the verdict director for count II in that the verdict director was not the correct MAI instruction and did not include the required cross-reference; (4) plainly erred in submitting the verdict director for count III in that the verdict director was not the correct MAI instruction and did not include the required cross-reference; (5) erred in failing to ensure that the complete text of certain mandatory jury instructions was submitted to the jury; and (6) erred in allowing into evidence testimony regarding a prior bad act of Aldana. We affirm the judgment of the trial court.

Factual and Procedural Background¹

[1] On or about August 1, 2017, a woman in Ray County ("Babysitter") met Aldana, his then-wife, and two of his children, as she was to begin babysitting the children the next day. Babysitter noticed bruising on the little three-year-old daughter’s ("Victim") face, but Victim’s hair was in front of the bruising, and Babysitter believed it might be a birthmark. At the meeting, Aldana told Babysitter that Victim was potty trained, but that she had been having accidents. The next day, August 2, 2017, Aldana brought the children to Babysitter’s house, and, before he left, he told Babysitter that he "took care of" the problem with Victim’s accidents. After Aldana left, Babysitter noticed more bruising and red marks on Victim’s face. The bruising on Victim’s face varied in color, as if some bruises were older than others. Victim later complained that her stomach hurt, and she needed to use the bathroom. Babysitter heard crying from the bathroom, and when she checked on Victim, Victim was having a hard time sitting on the toilet Upon examining Victim, Babysitter saw bruising down Victim’s lower back and bottom. "And she couldn’t even sit down because it hurt that bad." Babysitter asked Victim how she got the bruises, and Victim answered that her dad screamed at her a lot, that her dad was scary, and that he had hit her. Babysitter took pictures of the bruises on Victim’s face, but she did not feel that it was appropriate to take pictures of the body of a three-year-old that she had just met. The pictures of Victim’s face showed some bruising in several places, some splotching or petechiae, and some red hemorrhagic spots in Victim’s eyes. Victim seemed sad and told Babysitter that her dad hit her face, stomach, and back, and Victim would "motion" the hitting. Babysitter made a "hotline" call that was referred to an employee of the Ray County Children’s Division ("Investigator").

Investigator received the hotline notification on August 3, 2017. She called Babysitter and went over the hotline report with her. Investigator and two law enforcement officers went to the home where Victim and her family were living, which belonged to Victim’s grandparents. At that time, the grandmother was with the children, and both of the children’s parents were at work. Investigator could immediately see bruising on Victim’s face as she watched television, even though the room was dimly lit. Investigator examined Victim and saw bruising on Victim’s forehead and on the left side of Victim’s face, and she saw petechiae under Victim’s eyes and in her eyes as she got closer. Investigator, in the light of the police officer’s flashlight, could see "[m]ultiple bruising of all stages, all colors" on Victim’s back and buttocks. There was also a bruise on Victim’s chest.

During the investigation, Aldana returned to the home. Investigator introduced herself and told him why she was there. Aldana told Investigator he did not realize that Victim had any bruising on her. He said that Victim played with her siblings and possibly got bruises that way. Aldana stated that the siblings did not hit Victim, but, when asked, Aldana admitted that he had spanked Victim the previous night with an open hand. He stated that Victim had been pooping her pants, and he had spanked her for it three nights in a row. Aldana told Investigator that they had made an appointment for Victim to go to the doctor about her pooping her pants, and that the appointment was a couple of weeks out. Aldana told Investigator that he had seen the red marks in Victim’s eyes, and he believed they were from her straining to poop. Aldana agreed to a safety plan wherein he would leave the residence for a while, and Victim’s mother ("Mother"), who had since returned home, agreed to take Victim to Children’s Mercy Hospital for examination. Mother asked Aldana’s sister ("Aunt") to meet them at Children’s Mercy, and Aunt agreed. Investigator was worried about Mother’s "protective capacities," and so the safety plan that was devised was for Victim and her baby brother to go home with Aunt after the hospital examination. Upon examination of Victim, Children’s Mercy diagnosed child abuse. The nurse practitioner ("NP") who examined Victim later in the month of August, did not see any bruises on Victim at that time but reviewed the photos taken of Victim’s injuries and did not believe that the petechiae or subconjunctival hemorrhages to Victim’s eyes were caused by' Victim straining for a bowel movement. NP consulted with Victim’s GI doctors, who indicated that it would be "pretty rare" to see injuries like those on Victim’s face due to constipation. NP opined that straining might produce "one or two" petechiae but not the amount that Victim had. NP concluded that straining was not a "plausible explanation" for Victim’s injuries, but rather they could have been caused by blunt force trauma to both sides of the face or by "compression [or] strangulation" including a hand placed on Victim’s face to keep her quiet. NP could not completely rule out straining as a cause of the petechiae, however, or state to a reasonable degree of medical certainty that they were not caused by straining. NP also testified that the bruises on Victim’s back and bottom were not consistent with accidental falls because when children fall accidentally, they usually fall forward and bruise bony prominences.

Victim also participated in a forensic examination on August 7, 2017. During this interview, Victim said she received her injuries from Aldana hitting and spanking her. Victim indicated that Aldana punched her in the stomach and hit her face. When the interviewer asked Victim about the marks on her face, Victim answered, "Bruises. Bruises. Daddy gave me bruises."

Aldana was interviewed by a detective on August 8, 2017. After the interview, Aldana told the detective that he was mad at himself for getting himself in that situation. Aldana stated that "his family had a problem and his way of fixing that was him going to anger management." He did not believe that law enforcement or DFS needed to be involved in the situation.

Aunt testified at trial that Victim and Her baby brother stayed with Aunt for thirteen months, and although Victim continued to have problems in the bathroom causing her to strain and cry, she did not ever develop new bruising on her face from her straining. While Victim stayed with Aunt, she would sometimes talk about how Aldana would spank her butt and her face. Aldana also testified at trial, stating that Victim had periodically struggled with constipation, and she was struggling in August of 2017. Due to her constipation, Victim would strain, and her face would get red; sometimes she could go, and sometimes she could not. Sometimes she would leave the bathroom and then have accidents. Aldana testified that he, Mother, and Victim’s grandmother decided that Aldana would "step in" and address the issue. On August 2, 2017, Victim strained on the toilet but could not go. Aldana "got tired of watching her struggle," so he had her get up and go into the living room. About fifteen minutes later, Victim curled up and passed her bowel movement. Mother changed Victim, and then Aldana spanked her. "[T]he day before [the police] showed up" was the last time Aldana spanked Victim; Mother and the grandmother told Aldana, "This doesn’t look like it’s working." Aldana did not think he had been spanking Victim hard enough to leave bruises.

Mother testified in rebuttal. She said that Victim had issues with constipation "on and off since she was a newborn" due to complications from a hernia. Mother testified that the morning Victim and the baby went to stay with Babysitter, Mother had to leave early, so she left the children with Aldana. Victim did not have any marks on her face when Mother left home. Mother picked the children up from Babysitter’s house after work and then noticed the "red spots around [Victim’s] eyes." Mother asked Aldana about the marks, and he responded, that he did not know. Mother was "absolutely not" okay with...