State v. Creech, 73451

• Decision Date: 15 December 1998
• Docket Number: No. 73451,73451
• Parties: STATE of Missouri, Respondent, v. Clarence CREECH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 169

983 S.W.2d 169

STATE of Missouri, Respondent, v. Clarence CREECH, Defendant-Appellant.

No. 73451.

Missouri Court of Appeals,

Eastern District,

Division Five.

Dec. 15, 1998.

Charlie James, Shelly C. Buff, Wentzville, for appellant.

James L. Spradlin, Asst. Pros. Atty., Troy, for respondent.

ROBERT G. DOWD, Jr., Chief Judge.

Defendant appeals from the judgment of conviction and fifty dollar ($50) fine for the misdemeanor crime of telephone harassment under Section 565.090, RSMo 1994. Section 565.090.1(4) makes it a crime to make repeated telephone calls for the purpose of frightening or disturbing another person. Defendant was charged with making repeated telephone calls to M.B. between May 1 and June 5, 1997, for the purpose of frightening or disturbing her. The State does not contest the conclusion there was no evidence to support a finding of intent to frighten. Defendant contends the trial court erred because the State failed to show evidence to support a finding that Defendant made repeated phone calls with the purpose to disturb. We affirm.

The evidence in a jury-waived case is reviewed by the same standard as in a jury-tried case. State v. Koetting, 691 S.W.2d 328, 329 (Mo.App. E.D.1985). We are not to weigh the evidence, but to determine whether there was sufficient evidence from which the trier of fact could reasonably have found the Defendant guilty as charged. Id. We accept as true all evidence, direct and circumstantial, and all reasonable inferences supportive of the judgment, disregarding the contrary evidence. Id.

The facts in the light most favorable to the verdict are as follows. Defendant began to call M.B. and called her approximately thirteen times. Approximately six of those calls occurred between May 1 and June 5, 1997, the time period charged. M.B. was fourteen years old at the time these conversations occurred. ¹ During these telephone conversations, Defendant would ask M.B. if she would have sex with him. M.B. testified that Defendant would bring up the topic of sex "about every time we talked." When Defendant made references to sex, M.B. would respond in one of three ways: (1) she would hang up the phone; (2) tell Defendant that she had to go; or (3) respond in the negative. On May 28, 1997, M.B. complained to her father about Defendant's calls. M.B. testified she told her father about the calls because "it started to annoy me." M.B. further testified she made a prior statement saying she was frightened of Defendant. Defendant called again to speak with M.B. and her father told him never to call their house again. When Defendant did call again, M.B. and her father went to the sheriff's department and filed a complaint. M.B. wrote and signed a statement at the sheriff's department. M.B.'s statement was offered as State's Exhibit 1 and received into evidence at trial. Defendant did not file this exhibit with this court. It is Defendant's responsibility to see that a complete record is filed. Rule 30.04; State v. McClain, 602 S.W.2d 458, 459 (Mo.App. E.D.1980). When an exhibit is omitted from the transcript and is not filed with the appellate court, the intendment and content of the exhibit will be taken as favorable to the trial court's ruling and as unfavorable to Defendant. Gage v. Morse, 933 S.W.2d 410, 424 (Mo.App. S.D.1996).

The sole issue is whether the State offered evidence to support a finding of intent to disturb. Section 565.090 requires a specific intent on the defendant's part to frighten or disturb another. State v. Rafaeli, 905 S.W.2d 516, 518 (Mo.App. E.D.1995). A caller's intent to disturb need not be his or her sole intent in making repeated phone calls, only one of his or her purposes. Id. Intent is a state of mind and is usually not susceptible to direct proof; therefore, intent is generally established by circumstantial evidence. Id.

Based on our standard of review, we find sufficient evidence from which the trier of fact could reasonably infer from these facts that Defendant intended to disturb M.B. by his calls and references to sex. Whenever Defendant brought up the topic of sex, M.B. would respond in a negative manner. M.B. would hang up, tell Defendant she had to go, or tell him "No." Defendant continued to call M.B. and discuss having sex despite her repeated negative responses. Defendant knew that M.B. did not want to have sex with him or even talk about sex, yet he attempted to discuss the topic almost every time they spoke. Ultimately, M.B. complained to her father about the calls because she was annoyed. M.B.'s father told Defendant not to call again, but Defendant did call again. The trier of fact could logically infer that unless Defendant intended to disturb M.B., he would have stopped calling M.B. and requesting sex after she repeatedly hung up on him.

Defendant argues the calls were not repeated because he only made one call after he was told not to call by M.B.'s father. We disagree. Defendant cites State v. Placke, 733 S.W.2d 847 (Mo.App. E.D.1987) in support of his contention. In Placke, this court concluded that telephone harassment by making repeated calls could only be committed by the making of two or more calls. Id. at 850. In Placke, we held that four separate calls on an answering machine tape constituted repeated calls. Id. There is nothing in Placke to indicate that a caller must be told to stop calling before the count for "repeated" calls begins. Defendant made six calls to M.B. in the time period charged. This meets the two or more test for repeated calls. We do not agree that the State needs to establish that the victim told the caller to stop calling in order to prove intent to disturb by making repeated telephone calls. See State v. Mallory, 886 S.W.2d 89, 91 (Mo.App. W.D.1994).

We understand the necessity to avoid criminalizing actions arising from the normal risks of daily human interaction such as those resulting from family or relationship squabbles. However, we believe the case at hand falls outside the scope of these normal risks. This is not a case of boyfriend-girlfriend petulance, but instead the harassment of a young adolescent girl by repeated requests of her to have sex with Defendant, despite the fact she repeatedly hung up on him when he broached the topic.

Under our limited review, we find these facts and their reasonable inference support a finding of the requisite intent to disturb by making repeated phone calls. Accordingly, Defendant's contention is without merit.

We affirm.

KAROHL, J., dissents.

CRIST, Senior Judge, concurs.

KAROHL, Judge, dissenting.

I respectfully dissent.

The evidence in the present case was insufficient to support a finding that Defendant had a specific intent to disturb when he called M.B. There is no issue regarding the failure to prove intent to frighten. The State only contends it offered evidence to support finding intent to disturb.

The majority opinion depends upon a conclusion, "The trier of fact could logically infer that unless Defendant intended to disturb M.B., he would have stopped calling M.B. and requesting sex after she repeatedly hung up on him." All of the evidence was offered by State's...