State v. Jansen

679 S.W.3d 96

STATE of Missouri, Respondent,

v.Jesse M. JANSEN, Appellant.

No. ED 110787

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: October 24, 2023

Appeal from the Circuit Court of St. Charles County, Honorable Daniel G. Pelikan, Judge

For Appellant: Philip H. Dennis, Jr., 5340 Delmar Blvd., Ste. 101, St. Louis, MO 63112, Jedd C. Schneider, 1000 W. Nifong Blvd., Bldg. 7, Ste. 1000, Columbia, MO 65203.

For Respondent: Justin E. Davis, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Presiding Judge

Introduction

Jesse M. Jansen ("Jansen") appeals from the trial court’s judgment following jury convictions on domestic assault in the fourth degree and child abuse. Jansen raises two points on appeal challenging his child-abuse conviction. In Point One, Jansen contends the trial court erred in denying his motion for judgment of acquittal because the State failed to adduce any evidence that Jansen was eighteen years of age or older, an essential element of child abuse. Point Two asserts the trial court plainly erred in failing to instruct sua sponte the jury on justified force by a person entrusted with the care and supervision of a minor. Because the jury observed Jansen in the courtroom and the State put forth sufficient circumstantial evidence from which the jury could reasonably infer Jansen was over the age of eighteen, we find the trial court did not err in denying Jansen’s acquittal motion, and we deny Point One. As to the jury instruction, because Jansen did not meet his burden of injecting the issue of entrustment into the case, the trial court did not plainly err in failing to provide sua sponte a justification instruction, and we deny Point Two. Accordingly, we affirm the trial court’s judgment.

Factual and Procedural History

This case arises from an incident in St. Charles County on June 5, 2021. Jansen, his girlfriend ("E.B."), and their children spent the day at a waterpark with numerous extended family members, including E.B.’s nephew ("D.B."). At or around 7:00 pm, Jansen drove his car from the waterpark back to his home in O’Fallon. E.B. was in the passenger seat and three children were in the back. At least one other car carried the remaining family members back to Jansen’s home.

On the drive, Jansen became very upset and "deregulated." He drove excessively over the speed limit, and E.B. suspected he was having a "mental health crisis." Upon arriving home, Jansen parked his car in the driveway and got out. E.B.—who is earning a graduate degree in mental health counseling—attempted to "deescalat[e]" Jansen by forcing him back into the car. E.B. wanted to take Jansen on a drive to "bring him down" or seek psychiatric care, but Jansen would not get back in. E.B. and Jansen engaged in a "shoving match" on the driveway. According to eyewitnesses, Jansen slammed E.B.’s head against the garage door multiple times, although E.B. testified this did not happen.

D.B. saw the encounter between Jansen and E.B. and approached to separate them. Other teenage cousins rushed out alongside D.B. to help. At the time, D.B. was fourteen years old and had a slight frame. As D.B. attempted to enter the melee, Jansen picked him up, raised him to shoulder level, and then threw him onto the pavement. Eyewitnesses described that Jansen forcefully slammed D.B. to the ground with an overhead throw. D.B. landed in the middle of the street. While D.B. lay on the ground, Jansen approached and kicked him multiple times in the side, as if Jansen was trying to "kick a soccer ball or a field goal." Jansen then returned to his car and drove away. Neighbors observed the encounter from their driveways and windows, and at least one neighbor called 911.

The State charged Jansen with abuse or neglect of a child (a Class D felony) and domestic assault in the fourth degree (a Class A misdemeanor). The case proceeded to a jury trial in March 2022. The State called as witnesses three adult neighbors who had observed the incident. Each neighbor made an in-court identification of Jansen. One neighbor testified that she met Jansen and E.B. in early 2020 when they moved into the neighborhood and began renting their home. The State also called one of the responding officers, Officer J.E. The State subpoenaed D.B., but he did not appear.

Jansen did not testify on his own behalf, and he called E.B. as his sole witness. E.B. stated that she and Jansen had dated for seven years and had three children together. She also testified that she and Jansen are often asked to take care of young family members for extended periods, stating:

So at our house we basically have like all my cousins at any given time. I’m one of like [sixty] plus first cousins, so we have a lot of the older cousins. Whenever my aunts and uncles need a break, I’ll take the little ones too. When [Jansen’s] sister needs a break, we get the little baby for like weeks or months depending on what she needs.

E.B. also testified that she and Jansen have been "appointed by the State to take care" of her cousins, around "nine additional children for three months."

The State did not elicit testimony as to Jansen’s age nor produce documents dis- playing Jansen’s birthdate.¹ Throughout the trial, attorneys and witnesses referred to Jansen as a "male," "man," "adult male," or a "gentleman." Three times, witnesses categorized Jansen as one among the many "other adult[s]" present that day. In contrast, witnesses referred to D.B. as a "small boy," a "tiny child," and a "kid."

At the close of evidence, the trial court held a jury instruction conference. Jansen did not request that the trial court give Missouri Approved Instructions-Criminal ("MAI-CR") 4th (2022) 406.20, which instructs the jury on the justified use of force by a person entrusted with the care and supervision of a minor. Jansen raised no objections to the State’s proffered MAI-CR 4th pattern instructions.

In closing argument, the State reviewed the elements of child abuse, including the following: "And the next element, the Defendant was [eighteen] years of age or older. That’s a given too. Very simple." Jansen raised no objection.

The jury found Jansen guilty on both counts. The trial court sentenced Jansen to one year in jail on the child-abuse count and sixty days in jail on the domestic-assault count, with the sentences to run concurrently. This appeal follows.

Points on Appeal

Jansen raises two points on appeal challenging his child-abuse conviction. Point One argues the trial court erred in overruling Jansen’s motion for judgment of acquittal on abuse of a child because the State failed to present sufficient evidence that Jansen was eighteen years of age or older. Point Two asserts the trial court plainly erred in failing to instruct sua sponte the jury on justified use of force by a person entrusted with the care and supervision of a minor because there was sufficient evidence to inject the issue that Jansen used force against D.B. to promote D.B.’s welfare. A finding that Jansen’s use of force was justified would have provided a complete defense to the child-abuse charge.

Discussion

I. Point One—Sufficiency of the Evidence

A. Standard of Review

[1–5] Jansen concedes he raises his challenge to the sufficiency of the evidence for the first time on appeal. However, a defendant’s claim that there was insufficient evidence to sustain his conviction is preserved for review even if it was not raised before the trial court. State v. Claycomb, 470 S.W.3d 358, 361 (Mo. banc 2015); see Rule 29.11(d)(3).² We review all challenges to the sufficiency of the evidence on their merits. Claycomb, 470 S.W.3d at 362. We will affirm a defendant’s conviction so long as "there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty." State v. Latall, 271 S.W.3d 561, 566 (Mo. banc 2008). We give "great deference" to the trier of fact. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (quo- tation omitted). Our task is not to reweigh the evidence; rather, we "accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore all contrary evidence and inferences." Latall, 271 S.W.3d at 566 (quotation omitted).

[6–8] "An ‘inference’ is a conclusion drawn by reason from facts established by proof." State v. Kinsella, 578 S.W.3d 802, 815 (Mo. App. E.D. 2019) (quotation omitted). "Reasonable inferences can be drawn from both direct and circumstantial evidence, and circumstantial evidence alone can be sufficient to support a conviction." State v. Peeler, 603 S.W.3d 917, 920 (Mo. App. E.D. 2020) (quotation omitted); see also State v. Mueller, 568 S.W.3d 62, 66 (Mo. App. S.D. 2019) (noting that circumstantial evidence is given the same weight as direct evidence when reviewing for sufficiency). "But, to be sufficient, the circumstantial evidence still must give ‘rise to a logical inference’ that a fact exists, not a speculative inference." State v. Lehman, 617 S.W.3d 843, 848 (Mo. banc 2021) (quotation omitted). It is well-established that "unreasonable, speculative, or forced inferences" cannot support a verdict. Peeler, 603 S.W.3d at 920–21 (quoting State v. Lammers, 479 S.W.3d 624, 632 (Mo. banc 2016)).

B. Analysis

Section 568.060³ governs felony child abuse and provides:

A person commits the offense of abuse or neglect of a child if such person knowingly causes a child who is less than eighteen years of age:

(1) To suffer physical or mental injury as a result of abuse or neglect; or

(2) To be placed in a situation in which the child may suffer physical or mental injury as the result of abuse or neglect. Section 568.060.2; see also State v. Ashcraft, 530 S.W.3d 579, 585 (Mo. App. E.D. 2017). The same statute defines "abuse" as "the infliction of physical, sexual, or mental injury against a child by any person eighteen years of age or older." Section 568.060.1(1).

[9, 10] The State must prove every element of an offense...