State v. Dawson

• Decision Date: 23 February 1999
• Docket Number: No. WD,WD
• Citation: 985 S.W.2d 941
• Parties: STATE of Missouri, Respondent, v. William W. DAWSON, Appellant. 54430.
• Court: Missouri Court of Appeals

Page 941

985 S.W.2d 941

STATE of Missouri, Respondent, v. William W. DAWSON, Appellant.

No. WD 54430.

Missouri Court of Appeals,

Western District.

Feb. 23, 1999.

Thomas J. Cox, Kansas City, for appellant.

Bronwyn Werner, Asst. Pros. Atty., Kansas City, for respondent.

Before BRECKENRIDGE, C.J., HANNA and ELLIS, JJ.

PATRICIA BRECKENRIDGE, Chief Judge.

Following a bench trial, William Dawson was convicted of stalking, pursuant to § 565.225, RSMo 1994, ¹ and third degree assault, pursuant to § 565.070. Mr. Dawson was sentenced to one year in the Jackson County Department of Corrections for the stalking conviction. Execution of the sentence was suspended and Mr. Dawson was placed on probation for two years beginning at the completion of the sentence on the assault conviction. On the assault charge, Mr. Dawson was sentenced to fifteen days in the Jackson County Department of Corrections, with delayed execution pending appeal. Mr. Dawson appeals both convictions, raising five points of error. First, he contends that the trial court erred in admitting evidence on the stalking charge that was irrelevant, without proper foundation and relating to events which occurred outside of the statute of limitations. Second, Mr. Dawson claims the court erred in denying his motion for a judgment of acquittal and finding him guilty of stalking because there was insufficient evidence upon which to convict him. Third, Mr. Dawson challenges the validity of the search warrant and claims the trial court erred in admitting fruits of the warrant. Fourth, Mr. Dawson claims his conviction for assault was not supported by sufficient evidence because there was no evidence that physical contact occurred. Finally, Mr. Dawson argues that an insufficient foundation was laid for admission of the victim's drinking mug and testimony relating to the mug.

This court finds that there was insufficient evidence to convict Mr. Dawson of stalking and that conviction is reversed. Therefore, it is irrelevant whether the evidence relating to the stalking charge was properly admitted. This court finds that the search warrant was supported by probable cause and the evidence discovered by the warrant was properly admitted. The court further finds that sufficient evidence of physical contact was presented to sustain the assault conviction. Finally, the court finds there was a sufficient foundation for the admission of evidence relating to the victim's mug and that evidence was properly admitted. The judgment is affirmed in part and reversed in part.

Factual and Procedural Background

Edna Nichols Pete began working in the mail room and sample room at Stuart Hall in March of 1952. She met Mr. Dawson, who was also employed at Stuart Hall, in 1967. In 1976, she began working as a receptionist for Stuart Hall. Stuart Hall employed approximately 200 to 250 people in 1995. As a receptionist, Ms. Pete worked in the front office and not in the plant area. Mr. Dawson was a manager, and he was also employed in the front office. While Ms. Pete was employed at Stuart Hall, the plant workers rarely came into the front office. When they did, they were distinguishable from the office staff by their attire. Because the Stuart Hall facility was located in an industrial area, the general public did not generally wander into the building. The office did not open to the public until 8:00 a.m., and visitors to the facility usually did not arrive before 8:00 to 8:30 a.m. Mr. Dawson always arrived at work by 7:00 a.m.

In the 1980's, Ms. Pete began finding an unusual substance on her telephone. The substance was sticky and white. She found this substance on her work telephone at her desk approximately three to four times a year for the ten to fifteen years before 1995. The last time she found it was in July of 1995. In August of 1995, she found the substance on her car window while it was parked in the Stuart Hall parking lot.

Ms. Pete described her morning routine as beginning at approximately 6:45 a.m., when she would arrive at her desk and put away her personal items. After putting away her things, Ms. Pete would then take her coffee cup and water mug to the kitchen on the second floor, where she made coffee and sat until approximately 7:15. After filling her coffee cup and water mug in the kitchen, she would return to her desk on the first floor, with her cup and mug, to begin work. On September 19, 1995, after returning from the kitchen, she left her cup and mug on her desk while she went to the mail room. She testified that she was in the mail room approximately eight to ten minutes.

When she returned, Ms. Pete picked up her water mug and took a drink through the straw. She noticed a bitter taste. When she looked at the mug she saw a white substance on the mug's lid, near the straw hole. Ms. Pete testified that she was extremely upset and surmised that the white substance she found in her mug was semen. She immediately called either David Hemmer, vice-president of finance, or Richard Miller, vice-president of human resources. She then participated in compiling a list of men who were present or were typically present at Stuart Hall in the early morning hours. Mr. Miller was responsible for assembling the list and also spoke with other employees regarding those present that morning. In all, a list of seven men, including Mr. Dawson, was compiled.

Mr. Kelly then took the mug to personnel supervisor, Christine Mautino. He had Ms Mautino place the mug and the lid in separate plastic Ziploc bags, and then placed the bags in a refrigerator in a locked room across from the Human Resources Department. Mr. Kelly accompanied Ms. Mautino into the storage room and he locked the door when they left. The police were contacted the next day.

When the police arrived, Mr. Kelly took Officer Scott Emory to the storage room, where he unlocked the door and opened the refrigerator. The bags containing the lid and mug were then removed from the refrigerator and Officer Emory took them to the East Patrol Division, where he packaged the items in an evidence bag. He sealed the evidence bag, marked it with his initials, and placed a card with the case report number on it. He then placed it in a locked closet in the East Patrol property room. The Regional Crime Lab performed tests to determine the identity of the substance on the mug and lid. The tests confirmed that the substance was semen.

After the results confirming the identity of the substance on the mug and lid were reported to Stuart Hall, Mr. Miller and Mr. Kelly conducted individual interviews in Mr. Miller's office with each of the seven men on the list. Mr. Miller explained the situation and asked each person to give a blood sample. Initially, all seven men indicated that they would give a blood sample. On December 5, 1995, Officer Peter Aretakis and Mr. Kelly met four of the men at Baptist Medical Center to have blood samples taken. Mr. Dawson was not present that day. On December 6, 1995, two more men gave blood samples. Again, Mr. Dawson did not report to the hospital for testing.

On December 5, 1995, Mr. Kelly attempted to contact Mr. Dawson at work to inform him they had rescheduled the tests, but Mr. Dawson had already left for the day. The next day, when Mr. Kelly approached Mr. Dawson about voluntarily giving a blood sample, he again indicated he would volunteer. However, later that day he told Mr. Kelly that he would not give a blood sample, participate or cooperate at that time because he did not trust Mr. Miller.

Around February 10th, Officer Barbara Baker, having taken over the investigation, received the results of the blood tests and the laboratory comparison of the samples to the semen found in the mug. She was informed that the tests excluded all six men as sources of the semen. She then completed a pick-up form for Mr. Dawson. The pick-up was issued on the basis of evidence indicating that there were seven people known to be around Ms. Pete's desk on the morning in question and all but Mr. Dawson were eliminated as possible sources of the semen, and because Mr. Dawson was employed at Stuart Hall during the entire ten to fifteen year period of time Ms. Pete alleged the other incidents had occurred.

On February 12, 1996, Detective Wayne Owings, pursuant to the pick-up order, arrested Mr. Dawson at Stuart Hall. Using Detective Baker's case file, Detective Owings collected information necessary to fill out a search warrant application to obtain a sample of Mr. Dawson's blood. He obtained the search warrant, and later that day, he and Detective Baker took Mr. Dawson to Baptist Medical Center to obtain a blood sample. Tests later confirmed that Mr. Dawson's DNA matched the DNA in the semen found in Ms. Pete's mug.

Mr. Dawson was charged with stalking and third degree assault. On November 6, 1996, a suppression hearing was held in which Mr. Dawson challenged the search warrant. Mr. Dawson questioned the warrant affidavit because there was no statement of witness credibility and the signing officer did not investigate the facts in the affidavit himself. On November 7, 1996, Judge Dean issued his order denying the motion to suppress, finding the affidavit supported probable cause. On February 24, 1997, a bench trial was held. Mr. Dawson did not offer any evidence. The trial court found Mr. Dawson guilty on both counts. This appeal followed.

Insufficient Evidence of a "Course of Conduct" To Sustain

Stalking Conviction

Because the court's determination of Mr. Dawson's second point is dispositive of the stalking conviction, it will be addressed first. Mr. Dawson challenges the sufficiency of the evidence supporting his conviction for stalking under § 565.225. This court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case. State v. Rehberg, 919 S.W.2d 543, 552 (Mo.App.1995). Appellate review of the sufficiency of the evidence to support a...