Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Myers v. State

Court of Appeals of Arkansas, Division II

October 26, 2016

JEREMY MYERS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-2014-363-5] HONORABLE JODI RAINES DENNIS, JUDGE

         AFFIRMED

          Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

          DAVID M. GLOVER, Judge

         Jeremy Myers was convicted by a Jefferson County Circuit Court jury of first-degree endangering the welfare of a minor. He was sentenced by the trial court to six years in prison. His sole point on appeal is that the trial court erred in not giving the jury an instruction on third-degree endangering the welfare of a minor.[1] We affirm.

         D.B., who was born on January 26, 2014, and is the son of Myers's girlfriend, Jordyn Billingsley, [2] is the victim in this case. Myers was left alone to care for D.B. on three occasions in 2014-February 25, April 28, and May 28. D.B. was admitted to Arkansas Children's Hospital on May 29 with numerous injuries, including skull fractures, broken ribs, broken legs, and a broken wrist. Myers was arrested and eventually convicted of endangering the welfare of a minor in the first degree.

         Myers argues the trial court erred in not giving a jury instruction on endangering the welfare of a minor in the third degree. An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. Cole v. State, 2013 Ark.App. 492. Once an offense is determined to be a lesser-included offense, the circuit court is obligated to instruct the jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Id. A circuit court's ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id.

         A person commits endangering the welfare of a minor in the first degree if, "being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely engages in conduct creating a substantial risk of death or serious physical injury to a minor." Ark. Code Ann. § 5-27-205(a)(1) (Repl. 2013). A person commits the offense of endangering the welfare of a minor in the third degree "if the person recklessly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of a person known by the actor to be a minor." Ark. Code Ann. § 5-27-207(a)(1).

         Even assuming endangering the welfare of a minor in the third degree is a lesser-included offense of endangering the welfare of a minor in the first degree, [3] Myers has failed to demonstrate there was a rational basis for giving the instruction for endangering the welfare of a minor in the third degree to the jury. Myers argues on appeal there was a rational basis for acquitting him of first-degree endangering the welfare of a minor and convicting him instead of third-degree endangerment. Specifically, he argues the jury could have found credible his testimony that he did not mean to hurt D.B. when he squeezed him, and therefore he only recklessly engaged in conduct creating a substantial risk of serious harm instead of purposely engaging in conduct creating a substantial risk of death or serious physical injury. We disagree.

         Angela Billingsley, D.B.'s grandmother, testified she did not notice any significant injuries to D.B. until after he and his mother had begun to reside with Myers; during the first part of May, she noticed D.B.'s head was larger than it should have known. She said Myers had watched D.B. on May 28, and the next day D.B. was lethargic and had bruises over his left eye and on his face. After taking D.B. to the pediatric clinic at Arkansas Children's Hospital (Children's), it was determined he had significant injuries.

         Dr. Karen Farst, a pediatrician at Children's, testified as an expert in both general and child-abuse pediatrics and recounted that she had treated D.B. on May 29, 2014; his head was disproportionately large as to the rest of his body; he seemed lethargic and quiet; there were visible bruises on his forehead and both sides of his face near the jaw line, with two noticeable circles on the jaw line and a small circle near the ear, which Dr. Farst explained was a very typical bruise for an injury inflicted on an infant generally caused by three fingers squeezing the face; and more bruises were discovered on his body when his clothes were removed. D.B.'s CAT scan revealed abnormal findings, including a large amount of subdural blood between the skull and brain on both sides of the brain lobes, as well as two skull fractures; the fluid was causing so much pressure on D.B.'s brain that he required emergency removal of the fluid to relieve the pressure on his brain and to keep his condition from deteriorating. Dr. Farst explained the most common reason for blood and fluid to collect between the skull and brain was trauma; there was no evidence of hemophilia or other reasons for D.B. to have such issues. Dr. Farst explained that the blood was chronic, meaning it was not recent, but rather was two weeks to a month old; it was her opinion the subdural hematoma had occurred about a month before D.B. was brought to the emergency room. D.B. ultimately had to have a shunt inserted into his brain cavity to continually drain the fluid from his brain. There were also two skull fractures, one on the right parietal bones, and one on the left parietal bones; the two fractures were in different locations and were not part of one continuous injury, but were separate injuries. Dr. Farst testified it was not typical for infants to have skull fractures-that required traumatic impact to the head, which could be caused by a blow to the head or a significant fall, and the fact that D.B. had two different skull fractures made it unlikely a single drop or fall would account for the injuries.

         Dr. Farst testified D.B. had forty fractures, many in his rib cage, but in other parts of his body as well; infants could not inflict this amount of injury on themselves; D.B.'s injuries indicated multiple episodes of injury; the most common mechanism for rib fractures was compression of the rib cage; it would be quite unusual to see multiple rib fractures in a line from a single blow; and in D.B.'s case, the numerous fractures in a line would indicate a very forceful, violent compression, not one that happened in normal, everyday care. Bruises on D.B.'s chest and back corroborated that there had been pressure on his chest; the bruising was more noticeable on the left side of his chest, which matched the fact that most acute fractures were on his left side.

         An x-ray of D.B.'s right femur indicated an acute fracture, with the bone being broken straight across; Dr. Farst explained that the femur is the largest bone in the body and is difficult to break straight across; such a break requires that a very high-force energy and a torque or bending force, such as someone stepping on the bone or actually bending the bone, would have to be applied. She explained this fracture would cause immediate pain and distress and would not occur from a routine household fall. An x-ray of D.B.'s left tibia revealed that the edge of the bone showed stages of healing around both sides and also at the base; injuries to the tibia to the extent of D.B.'s injuries are not normal for routine household falls and handling. Additionally, D.B.'s right wrist was broken, and an x-ray of his right foot indicated several fractures with thickened bone around the edge, caused from the foot being squeezed or by someone stepping on or crushing the foot. Dr. Farst ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.