State v. Lazinger

565 S.W.3d 220

STATE of Missouri, Respondent,

v.Caroline LAZINGER, Appellant.

WD 81168

Missouri Court of Appeals, Western District.

OPINION FILED: December 26, 2018

Dora Fichter, Jefferson City, MO, for respondent.

Carol D. Jansen, Columbia, MO, for appellant.

Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge and Anthony Rex Gabbert, Judge

Cynthia L. Martin, Judge

Caroline Lazinger ("Lazinger") appeals from the trial court's judgment convicting her of two counts of aggravated stalking. Lazinger asserts that the trial court erred in overruling her motion for judgment of acquittal at the close of all the evidence with respect to Count I because there was insufficient evidence to support a finding that Lazinger "directed her conduct" toward M.L. and thereby harassed him. Lazinger also asserts the trial court erred in overruling her objection to the admission of M.L.'s and S.L.'s testimony regarding their subjective feelings about Lazinger's prior uncharged conduct in 2013. Finding no error, we affirm.

Factual and Procedural Background¹

In 1994, Lazinger married M.L. The couple had two children during their marriage. Their oldest son, S.L., was born in 1997, and their youngest son was born in 2000. In 2005, Lazinger and M.L. divorced. Upon finalization of their divorce, Lazinger moved from Columbia, Missouri to the state of Maryland with the couple's two children. Pursuant to a joint custody arrangement, M.L. would travel to Maryland to visit the two children.

The children resided with Lazinger until 2012. In 2012, M.L. obtained a modification to the joint custody arrangement and was awarded sole legal and physical custody of the two children. Shortly thereafter, the two children moved back to Columbia, Missouri to live with M.L., who had remarried and had two additional children. Under the modified custody arrangement, Lazinger was not awarded any parenting time.

Over the next year, Lazinger, who still resided in Maryland, called once, and visited Columbia three times. During the first visit, Lazinger went to S.L.'s school, and attempted to persuade S.L. to move back to Maryland with her. During a second visit in June 2013, Lazinger went to M.L.'s home, rang the doorbell and sat on a bench on the front porch. During Lazinger's third visit to Columbia in November 2013, she again drove to M.L.'s home, but this time ran over M.L.'s mailbox and hit two vehicles, one of which was S.L.'s, with her vehicle. She also threatened to "take away" M.L.'s younger children from his remarriage. At some time during 2013,² an incident involving Lazinger occurred at M.L.'s workplace, which caused the workplace to implement additional security measures. M.L. got a dog for the family residence, and notified neighbors to watch for Lazinger's vehicle. M.L., his wife, and all the children within the household, including Lazinger's own, obtained an order of protection that did not permit any contact by Lazinger with the family.

On September 2, 2014, despite the order of protection, Lazinger called S.L. and said that she was planning to "come back to Columbia and cause another scene similar to the car incident in 2013." S.L. told his father about the phone call. The family anxiously awaited and prepared themselves "for anything that could possibly happen."

On April 22, 2015, Lazinger traveled from Maryland to Columbia and went to her youngest son's school, but was unable to locate him. Lazinger left her youngest son's school and went to find S.L., who also went to school nearby. Lazinger learned from other students that S.L. was at lacrosse practice in a nearby park, and she went to the park. S.L. recognized Lazinger from afar and left practice immediately to contact the School Resource Officer, who alerted local law enforcement about Lazinger's presence. When law enforcement apprehended Lazinger, she was carrying bags containing receipts from a hotel close to S.L.'s school, which had been reserved in a friend's name; prescription records from Walgreens for both her children and one of M.L.'s children from his remarriage -- whom she had previously threatened to "take away" from M.L.; and a "large stick."

The State charged Lazinger with two counts of aggravated stalking in violation of section 565.225.3.³ Count I of the First Amended Information alleged that:

between July 31, 2014, and April 23, 2015, ... [Lazinger], through her course of conduct, repeatedly and purposely harassed M.L. by contacting M.L.'s child, S.L. on or about September 2, 2014, by telephone, and by attending S.L.'s lacrosse practice on or about April 22, 2015, and thereby would have caused a reasonable person under the circumstances to be frightened, intimidated, or emotionally distressed, and the defendant previously has pleaded guilty to a violation of stalking involving M.L. under section 565.225, RSMo...

Count II of the First Amended Information alleged identical facts, except that S.L. was Lazinger's target of stalking.⁴

After a trial on August 15, 2017, the jury found Lazinger guilty on both counts. The trial court sentenced Lazinger to seven years imprisonment on both counts, to be served consecutively.

Lazinger appeals.

Standard of Review

" ‘Appellate review of sufficiency of the evidence is limited to whether the state has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt.’ " State v. Graham , 553 S.W.3d 411, 417 (Mo. App. W.D. 2018) (quoting State v. Steidley , 533 S.W.3d 762, 768 (Mo. App. W.D. 2017) ). "In reviewing the evidence, this Court ‘considers all evidence in the light most favorable to the verdict and grants the State all reasonable inferences.’ " State v. Sigmon , 517 S.W.3d 653, 658 (Mo. App. E.D. 2017) (quoting State v. Lammers , 479 S.W.3d 624, 632 (Mo. banc 2016) ). We disregard any evidence and inferences that are contrary to the verdict. Graham , 553 S.W.3d at 417.

We review the trial court's decisions regarding admission of evidence for an abuse of discretion. State v. Joyner , 458 S.W.3d 875, 880 (Mo. App. W.D. 2015). "The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (citing State v. Marquis , 446 S.W.3d 311, 317 (Mo. App. W.D. 2014) ).

"We review the trial court's admission or exclusion of evidence for prejudice and not mere error, and will affirm the court's ruling unless it was so prejudicial that it deprived the defendant of a fair trial." State v. Curry , 357 S.W.3d 259, 264 (Mo. App. E.D. 2012).

Analysis

Lazinger raises two points on appeal. Her first point argues the trial court erred in overruling her motion for acquittal at the close of the evidence because there was insufficient evidence to support the essential elements of aggravated stalking as alleged in Count I of the First Amended Information. Lazinger's second point asserts the trial court erred in overruling her objection to the admission of testimony about S.L.'s and M.L.'s subjective feelings regarding Lazinger's prior uncharged acts. Lazinger argues the admission of this testimony prejudicially evoked the sympathies of the jury, while also misleading and confusing the jury, resulting in her conviction on both Counts I and II of the First Amended Information. We address each point in turn.

Point One

Lazinger's first point on appeal argues that the trial court erred in overruling her motion for judgment of acquittal because the State failed to present sufficient evidence to support her conviction on Count I. Lazinger argues the State failed to present sufficient evidence to permit a reasonable juror to conclude that Lazinger "purposely, through [ ] her course of conduct, harass[ed]" M.L. when she went to S.L.'s lacrosse practice. Lazinger further asserts that a course of conduct was not sufficiently established because Lazinger did not "purposely harass" M.L. by attempting to visit S.L. at his lacrosse practice, and the State relied on only the lacrosse practice incident and the September 2, 2014 phone call to S.L. to establish a course of conduct.

A person commits the offense of stalking if she "purposely, through [ ] her course of conduct, harasses or follows with the intent of harassing another person." Section 565.225.2. "The offense is elevated to aggravated stalking if, in committing the offense of stalking, a person's course of conduct includes one of five statutory aggravators." Graham , 553 S.W.3d at 417. Those five statutory aggravators are provided in section 565.225.3:

A person commits the crime of aggravated stalking if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person, and:

(1) Makes a credible threat; or

(2) At least one of the acts constituting the course of conduct is in violation of an order of protection and the person has received actual notice of such order; or

(3) At least one of the actions constituting the course of conduct is in violation of a condition of probation, parole, pretrial release, or release on bond pending appeal; or

(4) At any time during the course of conduct, the other person is seventeen years of age or younger and the person harassing the other person is twenty-one years of age or older; or

(5) He or she has previously pleaded guilty to or been found guilty of domestic assault, violation of an order of protection, or any other crime where the other person was the victim.

Count I of the First Amended Information alleged that Lazinger committed aggravated stalking because she harassed M.L. with a course of conduct and had "previously pleaded guilty to a violation of stalking involving M.L." Count I thus relied on 565.225.3(5) as the statutory basis for aggravated stalking because 565.225.3(5) permits elevation of stalking to aggravated stalking if a defendant "has previously pleaded guilty to ... any...