State v. Graham

553 S.W.3d 411

STATE of Missouri, Respondent,

v.Tahj Don GRAHAM, Appellant.

WD 80563

Missouri Court of Appeals, Western District.

OPINION FILED: June 26, 2018

Gregory L. Barnes, Jefferson City, MO, for respondent.

Christian Lehmberg, Columbia, MO, for appellant.

Before Division Three: Victor C. Howard, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

Tahj Don Graham ("Graham") appeals from the trial court's judgment convicting him of two counts of aggravated stalking. Graham asserts that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence because there was insufficient evidence to support a finding that: (1) with respect to Count I, Graham received actual notice of a full order of protection and its content, and that Graham engaged in a "course of conduct," and (2) with respect to Count II, Graham sent text messages with the purpose to harass his victim. We affirm.

Factual and Procedural Background¹

Graham and A.L. were in a romantic relationship that ended in July 2014. A.L. sought and obtained an ex parte order of protection from Graham on July 22, 2014. A.L. testified that she sought the ex parte order of protection because she "had received a call from [Graham] stating that he was going to put a bullet through me and my children's heads and that he was going to blow up my house and expose nude pictures of me on social media." The ex parte order of protection prohibited Graham from "[c]ommunicat[ing] with [A.L.] in any manner or through any medium." Graham was served with a copy of the ex parte order of protection on July 25, 2014.

On August 6, 2014, the court entered a full order of protection prohibiting Graham from having any contact with A.L. The full order of protection found that, while Graham did not appear at the hearing, Graham "was provided with reasonable notice and an opportunity to participate and be heard" in that he was served with a copy of the petition, notice of the hearing, and the ex parte order of protection at least three days prior to the August 6, 2014 hearing. The full order of protection provided that Graham: (1) "SHALL NOT COMMUNICATE with [A.L.], in any manner or through any medium," including "us[ing] third parties (including children) to communicate"; (2) "shall not commit or threaten to commit domestic violence, molest, stalk, or disturb the peace of [A.L.]"; (3) "shall not harass, stalk or threaten [A.L.] or [A.L.'s] child, or engage in other conduct that would place [A.L.] in reasonable fear of bodily injury to [A.L.] or [A.L.'s] child"; and (4) "shall not use, attempt to use, or threaten to use physical force against [A.L.] or [A.L.'s] child that would reasonably cause bodily injury."

Graham called the Boone County Sheriff's Department on August 26, 2014, and asked to speak with Deputy Matt Vessar ("Deputy Vessar").² Graham left a message for Deputy Vessar and gave a phone number at a local hotel where he could be reached. Deputy Vessar returned Graham's call using the phone number Graham left in his message, but did not reach Graham. Deputy Vessar then called (817) 300-9091, a number Deputy Vessar had previously used to reach Graham. Graham answered, and the two men had a five- to ten-minute conversation. Graham told Deputy Vessar that "he had been in the area" because "[h]e had gone to court for his order-of-protection hearing ... and [had] taken care of all of that." Graham then told Deputy Vessar that he still loved A.L. and wanted to make sure that she was the beneficiary of his will.

On August 26, 2014, at 5:28 p.m., A.L. received a series of text messages from the number (904) 373-9763. A.L. testified that, while she did not recognize the phone number, the content of the messages indicated that the messages were from Graham. The text conversation read:³

Graham: Hi

A.L.: Who is this

Graham: lied to you, I have a recording of her admitting it. Roderick listen to the recording ask

Graham: Robin Hood. I'm not trying to reconcile or contact you or anything. Just trying to get some normalcy back into my life, what's left of it. My mom trick and

Graham: him what he heard my Mom say about you I'm not trying to undermine you and force your family on me.

Graham: Just looking for peace and happiness. Your things have been return Roderick has them. Never planned on keeping them

Graham: Not trying to be in your life, but I will never break my promise to take care of u, u know I paid some bills last month, I gave u things back, I haven't

Graham: bothered u. I just want to make peace—on your terms.

A.L.: Leave me the fuck alone!!!!!!

Graham: regardless of outcome

Graham: Trying to stay true to my word. It's all I have and it's been tarnished bad. I pray for you every day, and always will. After court trial, I won't bother you

Graham: I'm not bill Thomas I won't hate or slander you

Graham: I pray for peace over your heart. Over your emotions, and I pray God himself walk you through forgiveness

Graham: I DON'T A RELATIONSHIP OR FRIENDSHIP with you just PEACE Marie

Graham: If you do nothing else on earth, listen to the video of her and I talking and she saying "I tricked her into telling me everything—then told her you were

Graham: broke and you would flip her life upside down if she didn't run"

Graham: I will fight tooth and nail legally to clear myself

Graham: I will not slander your name or speak ill at all. In nothing.

Graham: Did u get your stuff back

Graham: Your Oprah tour Atlanta tickets came in the mail

Graham: Love the back to school fashion show are you looking for sponsors? Would love to sponsor it

Graham: Would love to pray with you for peace

Graham: I won't EVER contact you just show some grace here so we don't end up in a full trial with dirty laundry aired. All asking, I will even sign a no contact

Graham: agreement

Graham: 8/6/2014 water bill, adt, sprint, direct tv, Boone electric bills paid

Graham: Water 40, adt 50, Sprint 100 direct tv 130, electric 150

Graham: I know u noticed those bills paid

Graham: Won't change my will, won't change my life insurance policies, won't stop praying for you, but certainly won't pursue you. I'm done there for good.

Graham: Leave me the fuck alone!!!!!!⁴

Graham: I will take a polygraph test to prove im bring honest

At 10:16 p.m., Graham initiated another series of texts with A.L.:⁵

Graham: U fucking Regis mcbride again

Graham: I want my life back I have no intentions on bothering u

Graham: U let tammie lie to you, you let Angie lie to you

Graham: And I just

On August 29, 2014, Graham again contacted A.L. via text message using the same phone number. That message stated:⁶

Graham: Be faithful with your love. God truth will be revealed my promises will be kept and shown/proved to be true. Forgiveness and Gods purpose for our lives will be

Graham: displayed and at the end of the I'm going to be right here if you ever call and need me.

Graham: I love you [A.L.], doing everything in "my" power to make things right while trusting on HIM for the results. Goodnight

A.L. reported Graham's violation of the full order of protection to Deputy Vessar on September 2, 2014.

Deputy Vessar contacted Graham on September 19, 2014. Deputy Vessar told Graham "There is an order of protection against you by [A.L.]." Graham responded, "I know that." Deputy Vessar told Graham that the full order of protection was dated August 6, 2014. Graham responded, "I know." Graham told Deputy Vessar that (904) 373-9763 was not his phone number. Graham denied sending A.L. text messages. Deputy Vessar told Graham that he was not allowed to contact A.L. Graham became angry and told Deputy Vessar not to contact him again.

Graham again contacted A.L. via text message on September 24, 2014, using the (904) 373-9763 phone number. Graham wrote, "You're beyond beautiful and praying for your success is a guilty pleasure of mine. Be fearless."⁷

On November 1, 2014, A.L. held a grand opening for her clothing business located at 1205 Rangeline in Columbia, Missouri. A.L.'s son, R.T., was at the store assisting with the grand opening when he received a phone call from (904) 373-9763. R.T. answered the phone and recognized Graham's voice. R.T. did not speak with Graham and, instead, put the phone down and walked away. Graham made several calls to R.T.'s phone, and each time, R.T. would answer the phone, set the phone down, and walk away. Graham then sent two text messages to R.T. from phone number (904) 373-9763 at 2:14 p.m. R.T. showed the text messages to A.L. and forwarded them to her phone. Those text messages stated,⁸ "I'm on log providence road right now about to set this shit in flames," and "Bloodbath time." A.L. lived on Log Providence Road, approximately thirty minutes south of downtown Columbia, with her minor children, who were twelve and five at the time. When Graham sent the text messages to R.T., A.L.'s minor children were in the home. A.L. was "terrified that [her] children were in danger."

Within a few minutes of Graham's texts to R.T., Graham placed an anonymous call to the information desk at the Boone County Sheriff's Department using phone number (817) 300-9091, the same number Deputy Vessar had used to reach Graham.

During the anonymous phone call, Graham said that "he was in route to a business to kill the owners" and that "it was going to be a bloodbath." While Graham did not name the business, he stated the business was located at 1205 Rangeline and that A.L. was the owner. Graham said that "he had about ten guns," and that "he had a ten-minute ETA" and "might be arriving in a taxi." The information desk employee relayed information about the call to the Columbia Police Department at 2:20 p.m., approximately six minutes after Graham's texts to R.T.

At least four officers responded to A.L.'s store at 2:37 p.m. Officer John Hoff ("Officer Hoff") of the Columbia Police Department spoke with A.L., who appeared upset by the situation. A.L. showed Officer Hoff the text messages that R.T. had received from Graham. Officer...