State v. Wilson

602 S.W.3d 328

STATE of Missouri, Respondent,

v.Joseph Michael WILSON, Appellant.

WD 82597

Missouri Court of Appeals, Western District.

Opinion filed: June 23, 2020

Julia E. Rives, for Respondent.

James C. Egan, for Appellant.

Division Three: Anthony Rex Gabbert, Presiding Judge, Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

EDWARD R. ARDINI, JR., JUDGE

Joseph Wilson ("Wilson") appeals his convictions for attempted robbery, domestic assault, property damage, and false imprisonment entered by the Circuit Court of Callaway County following a jury trial. We affirm Wilson's convictions but remand to the trial court for the limited purpose of correcting the written judgment to accurately reflect the jury's verdicts as to Counts I, II, IV, and XIV.

Factual and Procedural Background

Wilson and J.W.¹ began dating in 2010 and married in 2012. They lived with their three children in Fulton. Wilson and J.W. had problems throughout their marriage. By November 2016, J.W. and Wilson had separated, but J.W. stayed with Wilson on occasion. On November 18, 2016, J.W. stayed the night with Wilson. The following morning, Wilson demanded J.W. give him her cell phone and leave. J.W. complied and left for work. After work, she returned to retrieve some personal items. Wilson met her by the door and asked why she was there. The two argued, and Wilson demanded J.W. give him her purse. J.W. refused, and Wilson grabbed the purse. J.W. did not let go, and she fell to the ground. Wilson dragged J.W. from the driveway to the house before eventually releasing the purse. J.W. suffered a bruise on her hand and scratch on her leg during this incident.

J.W. ran from the home, obtained a ride to Walmart to buy a new cell phone, and was then taken to her parents’ residence. Wilson sent J.W. a text indicating that he would bring her personal items to her. However, upon arriving at the parents’ home, Wilson threw J.W.’s clothes and other items into the street and then drove over them with his vehicle.

The next day, J.W. reported the previous day's incident to police. J.W. additionally disclosed other past incidents of abuse by Wilson.

J.W. discussed an argument that occurred on approximately October 8, 2016. During this altercation, Wilson would not allow J.W. to leave with her cell phone. A struggle ensued that resulted in J.W.’s neck being burned by her cigarette. The following day, arguments between Wilson and J.W. continued, and Wilson punched J.W. in the face. J.W. convinced Wilson to allow her to leave for an hour, and, during this period, she went to the home of a friend and the friend took photographs of J.W.’s bruises.

J.W. also told the officer about multiple assaults that had occurred between February and April 2016.² On one occasion, J.W. and Wilson had planned to take their children to the circus, but Wilson fell asleep. When he awoke, Wilson was angry that J.W. did not take the children by herself, and he punched her in the cheek with a closed fist. On another occasion, Wilson was mad at J.W. for talking to police, so he choked her with his hands. Another time, after becoming angry with Wilson following a yard sale, Wilson attempted to punch J.W. in the face, but she moved and Wilson's fist hit her arm. Yet another time, J.W. asked to leave the house, and Wilson grabbed her by her hair and pulled her to the ground. On a different occasion, J.W. found Wilson and another woman in bed, and Wilson kicked J.W. in the stomach and called her a "c*ck block." As part of a final incident during this period, Wilson punched J.W. in the chin while they were in their kitchen.

J.W. additionally disclosed an event that occurred the day before Thanksgiving in 2015, when Wilson picked up a Coke can and smashed it in J.W. face. The impact knocked J.W. unconscious, caused her to see spots, and left a bruise on her temple and eye.

Finally, J.W. discussed the initial incidents of violence perpetrated by Wilson against her. She told of a time in January 2015, when she and Wilson were "play wrestling" and Wilson twisted her arm behind her back. J.W. went to the hospital and had to wear a sling for two weeks. J.W. also recalled, around that same time, that Wilson had put his forearm against her neck and the wall and pushed up, choking her.

J.W. explained that she did not go to the police about the abuse earlier because she was afraid of Wilson. J.W. also stated that Wilson had consistently told her that if she did not like what he was doing, she could leave. J.W. said she stayed because she loved Wilson, but she finally reported the abuse because she could no longer conceal it after the incident in front of her parents’ home.

Wilson was arrested and charged, as a prior and persistent offender, with one count of robbery in the second degree (Count I); one count of property damage in the second degree (Count III); one count of felonious restraint (Count IV); and twelve counts of domestic assault in the second degree (Counts II and V through XV).

At trial, J.W., the investigating officer, J.W.’s friend, and Wilson testified. A Facebook post, including comments on the post by Wilson and others, and letters wherein Wilson admitted to assaulting J.W. were admitted into evidence. Wilson denied ever assaulting J.W. or authoring the Facebook post or letters. The jury found Wilson guilty of attempted robbery in the second degree (Count I); two counts of domestic assault in the third degree (Counts II and XIV); property damage in the second degree (Count III); false imprisonment (Count IV); and eleven counts of domestic assault in the second degree (Counts V, VI, VII, VIII, IX, X, XI, XII, XIII, and XV).³ Wilson was sentenced to fifteen years in the department of corrections for Counts I, VII, VIII, IX, X, XI, XII, and XV; ten years in the department of corrections for Count XIII; and 180 days in the Callaway County jail for Counts II, III, IV, V, and XIV, with all counts running concurrently except the sentence for Count XIII, which was ordered to run consecutive to the other sentences. Wilson appeals his convictions. Additional facts are provided throughout this opinion.

Discussion

Wilson raises two points on appeal. In his first point, Wilson alleges that the trial court abused its discretion in admitting the Facebook post and related comments because the State failed to lay a proper foundation. In his second point, Wilson asserts that the trial court erred in entering the judgment of conviction noting that four of the convictions in the written judgment differed from the jury's verdicts. We affirm Wilson's convictions but remand to the trial court for the limited purpose of correcting the written judgment to accurately reflect the jury's verdicts as to Counts I, II, IV, and XIV.

Point I – Foundation of the Facebook Post

In Point I, Wilson alleges that the trial court erred in admitting screen shots of a Facebook post and associated comments purportedly written by Wilson, arguing that the State failed to lay a sufficient foundation to establish their authenticity and genuineness.

During J.W.’s testimony, the State moved for the admission of three photographs. These photographs consisted of screen shots of a post, and comments to the post, made to Wilson's Facebook account. J.W. explained that she was Facebook friends with Wilson and saw the post immediately after he posted it. She stated that she did not have the ability to log into Wilson's Facebook account, but she knew it was his because the profile photograph was Wilson with the couple's three children, and J.W. "talked regularly" with Wilson on Facebook Messenger. J.W. stated that as soon as she saw the post, she called her sister and a friend who captured the screen shots.

The Facebook post stated, "F*ck b*tches. Unloyal ass hoes all about themselves. Actin like victims. F*ck outta here c*nt." J.W. explained that several comments on the post were made by mutual friends and J.W. and Wilson's landlord. The comments included, "Ummmmm. You and [J.W.] having a bad day?" and, "Well damn Joseph I tease Nichole allot but that's just harsh!" Wilson then responded, "Naw bro.... this aint harsh. My bottle full. Im done protecting peoples image. Truth will come out. Only thing I done wrong was punch peeps in the face. And that makes me a monster. F*ck that. Tired of this bullsh*t." One of the commenters followed up, writing, "I thought this sh*t was about your old lady I was like f******ck." Wilson added, "Lol it is. She scared of me cuz she gets punched in face for her behavior. Already told her she can hit the door if she is unhappy. But she stays and continue disrespecting and exspects me to take it like im a b*tch. And as the world knows ... I aint no b*tch."

Wilson's objection to the admission of the screen shots was overruled by the trial court.

Standard of Review

"The standard of review for the admission of evidence is abuse of discretion." State v. Primm , 347 S.W.3d 66, 70 (Mo. banc 2011) (citing State v. Reed , 282 S.W.3d 835, 837 (Mo. banc 2009) ). " ‘This standard gives the trial court broad leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be disturbed unless it is clearly against the logic of the circumstances.’ " Id. (quoting Reed , 282 S.W.3d at 837 ). Our review is for prejudice, not error alone; and we "will reverse only if the error was so prejudicial it deprived the defendant of a fair trial." State v. Hein , 553 S.W.3d 893, 896 (Mo. App. E.D. 2018) (citing State v. Naylor , 510 S.W.3d 855, 862 (Mo. banc 2017) ). "An error is prejudicial only if there is a reasonable probability that but for the court's error the outcome of the trial would have been different." State v. Harris , 358 S.W.3d 172, 174 (Mo. App. E.D. 2011) (citing State v. McKinney , 336 S.W.3d 499, 500 (Mo. App. E.D. 2011) ).

Analysis

The same foundational requirements germane to the admission of writings apply to online messages. See State v. Snow , 437 S.W.3d 396, 402 n.4 (Mo. App. S.D. 2014) ("we believe...