State v. Fairley

676 S.W.3d 463

STATE of Missouri, Plaintiff-Respondent,

v.Tyson J. FAIRLEY, Defendant-Appellant.

No. SD 37719

Missouri Court of Appeals, Southern District, In Division.

Filed: September 26, 2023

Attorney for Appellant – Katharine Patricia Curry, Columbia, Mo.

Attorney for Respondent – Kristen Shively Johnson, Jefferson City, Mo.

GINGER K. GOOCH, J.

Tyson Fairley ("Fairley") appeals the judgment of the trial court finding him guilty, after a bench trial, of first-degree rape under Section 566.030 (Count I) and first-degree sodomy under Section 566.060 (Count II).¹ Fairley raises three points on appeal. In Points I and II, Fairley challenges the sufficiency of the evidence to support his convictions. In Point III, Fairley asserts the trial court abused its discretion in admitting into evidence those parts of State's Exhibit 33 consisting of electronic messages sent by Fairley after the alleged crimes. We affirm the trial court's judgment.

Factual Background and Procedural History

In May 2018, ML was a student at Missouri State University and lived alone in a one-bedroom off-campus apartment. On May 10, 2018, ML and her friend CM planned to go out to celebrate CM's last day of classes. ML and CM met at ML's apartment after 8:00 p.m. and, before leaving ML's apartment, they both drank a shot of vodka and took Xanax. CM and ML were both about 5’1" and weighed about 115 pounds. ML and CM went to another apartment where they met CM's boyfriend and had "some shots" and maybe "a couple drinks." CM and ML had probably "seven or eight" drinks from a bottle of vodka. ML was "pretty tipsy" but "could walk around and get places."

ML, CM, and others eventually went to a bar. By the time ML arrived at the bar, ML "knew [she] was drunk" and "everything was kind of, like, spinning[.]" ML recalled telling CM's boyfriend that ML was drunk. ML recalled sitting in a booth at the bar and drinking. ML did not "remember much" after this point in the evening.

ML and CM left the bar and walked to CM's car to collect ML's keys. They planned to walk to ML's apartment two blocks away. ML recalled seeing someone talking to CM while ML was collecting her keys from the passenger floorboard of CM's car. Someone told ML they were getting a free ride from Fairley, a man ML and CM had not met. Fairley gave CM a "business card" with Lyft and Uber logos, which states:

Preferred Rider gift from Jay: ONE Ride Free

Text or Call: [ ]

Thursday-Saturday after 10pm only

*Must be redeemed by original passenger

CM observed Fairley's car had Uber and Lyft "insignia" and assumed he was an Uber or Lyft driver. ML recalled asking to be dropped off at her apartment first since it was closest at only two blocks away, but Fairley instead drove to another house first, which was significantly further away. CM's boyfriend recalled Fairley said, "I'll take good care of her[,]" referring to ML when he dropped off CM's boyfriend and CM.

When ML was alone with Fairley, ML moved to the front seat of the vehicle. ML recalled that Fairley kept touching her leg and shoulder while they were in the vehicle.

Fairley eventually took ML to her apartment, and ML went inside but did not remember using the code required to enter the building. Fairley followed ML into her apartment. ML testified she stood in the doorframe of her bathroom for roughly twenty minutes texting and trying to call friends because the "driver was still in her apartment" and she was "afraid." The State introduced text messages ML sent to CM in the early morning hours of May 11, 2018. ML began messaging CM at 1:26 a.m. with a single word, "Viste[.]" A minute later, she texted "*ciata[.]" At 1:29 a.m, she sent, "Hekob[.]" At 1:30 a.m., ML texted, "I'm still with driver[.]" She sent the same message again at 1:35 a.m. At 1:45 a.m., she texted, "Call my[.]" At 1:48, ML texted "[CM,] Like forreal I[,] This drive is sll my house I[,] [CM,] Lije it's not okey I[.]" ML also called CM twice at 1:33 a.m., once at 2:27 a.m., and again at 2:28 a.m. At 2:31 a.m., ML texted CM, "I basically just got rapped [sic][.]" CM's phone shows she did not respond to ML's text messages or answer her phone calls, and ML did not remember reaching anyone. The State also introduced text messages sent by ML to CM beginning at approximately 8:00 p.m. on May 10, and those messages are largely free of errors.

ML recalled she went to lie down on her bed facedown while Fairley was by her bed. Fairley began to rub her back. Fairley turned ML over, took her clothes off, kissed her, and stuck his penis in her mouth. Fairley then raped ML. ML next remembered getting up and getting dressed. No one else was in her apartment and the apartment door was unlocked. After getting dressed, ML locked the door and went to lie down. She recalled awakening to CM and CM's boyfriend knocking on her door. ML then contacted law enforcement. An exam performed on May 11, 2018 revealed Fairley's sperm on ML's inner thigh near her vagina.

ML testified she believed she had a total of 10 to 15 drinks beginning around 7:30 p.m. to 8:00 p.m. on May 10 through when she left the bar, in addition to taking Xanax. The State presented evidence that mixing Xanax and alcohol exacerbates the "physiological effects" of both substances in a kind of "poly effect." ML testified she was very intoxicated when Fairley was in her apartment and she was not able to make a reasonable judgment or consent to sexual activity with anyone.

The State offered State's Exhibit 33, consisting of records provided to the State by Google in response to a search warrant.

Fairley did not object to those parts of Exhibit 33 involving Fairley's online searches for CM's boyfriend's address, ML's address, and ML's full name. The rest of Exhibit 33 consists of electronic messages Fairley sent on August 15-16, 2018, several months after the May 2018 alleged crimes. On August 15-16, 2018, Fairley messaged various people with feminine names in the late evening and early morning hours asking them to contact him if they needed a ride. In a message to "Hope," Fairley stated, "Jay the Uber driver here. I'm just chilling between rides in front of Outland and thought of you. Are you out and about tonight?" Fairley sent another message the same night to "Lisa Marie" saying, "Jay here. I'm back downtown uber [sic] driving tonight. Let me know if you're in town and need to get somewhere!" Fairley sent another message on the same date, stating, "This is Jay the Uber driver. Let me know if you need meagain [sic]." The following night, Fairley sent a message to "Taylor" stating, "Did everything turn out ok last night? Thought it'd be good to check back up with you gals[.]" Taylor responded, "Hey! Lol yes thank you!!" Fairley responded, "You bet! You were pretty lit lol! I'll be out driving tonight. Feel free to touch base if need be."

Fairley objected to the admission of the August 15-16 messages based on relevance. The trial court admitted Exhibit 33, finding Fairley's objection was a "matter of weight." The State offered additional evidence that, as of August 15-16, 2018, Fairley was not logging rides with Lyft or Uber and did not have an active Uber account. Fairley's last Lyft job was in late June 2018. Fairley's last Uber job was on May 12, 2018 and his Uber account ended on May 17, 2018. Fairley did not log the ride he gave ML on May 11, 2018 with either Uber or Lyft.

The State charged Fairley with first-degree rape under Section 566.030 and first-degree sodomy under Section 566.060. After a bench trial, the trial court found Fairley guilty of both counts and entered its judgment sentencing Fairley to ten years’ imprisonment each on Counts I and II, with the sentences to be served consecutively. Fairley appealed.

Points I and II

Fairley argues the State presented insufficient evidence from which the trial court could find him guilty of first-degree rape (Count I) and first-degree sodomy (Count II) because the State failed to present sufficient evidence from which the trial court could find Fairley "knowingly" committed the crimes, as charged by the State, at a time when ML "was incapable of consent because of intoxication and was known by [Fairley] to be unable to make a reasonable judgment as to the nature or harmfulness [of the conduct charged to constitute the offense]" under Section 556.061(14)(b). Because Fairley makes an identical argument as to both Counts and because our analysis of the sufficiency of the evidence as to incapability of consent and Fairley's knowledge of the same is dispositive of both points, we consider Points I and II together.

Standard of Review

"A court reviewing the sufficiency of the evidence in a court-tried criminal case is limited to ascertaining whether the State presented sufficient evidence ‘from which a trier of fact could have reasonably found the defendant guilty.’ " State v. McCord , 621 S.W.3d 496, 498 (Mo. banc 2021) (quoting State v. Vandevere , 175 S.W.3d 107, 108 (Mo. banc 2005) ). "In reviewing sufficiency of the evidence, we accept as true all evidence and inferences favorable to the State; all contrary evidence and inferences are disregarded." State v. Gomez , 672 S.W.3d 113, 119 (Mo. App. 2023) (quoting State v. Shands , 661 S.W.3d 381, 382 (Mo. App. 2023) ). "Our assessment is not ‘whether this [C]ourt believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt.’ " State v. Dickerson , 609 S.W.3d 839, 843-44 (Mo. App. 2020) (quoting State v. Johnson , 576 S.W.3d 205, 230 (Mo. App. 2019) ). "We do not reweigh the evidence on appeal." Id. at 844.

Analysis

Under Sections 566.030 (first-degree rape) and 566.060 (first-degree sodomy), an element of each offense is that the crime is committed against a "person who is incapacitated, incapable of consent, or lacks the capacity to...