State v. Frye

• Decision Date: 29 January 2019
• Docket Number: WD 80831
• Citation: 566 S.W.3d 658
• Parties: STATE of Missouri, Respondent, v. Matthew Burl FRYE, Appellant.
• Court: Missouri Court of Appeals

566 S.W.3d 658

STATE of Missouri, Respondent,

v.Matthew Burl FRYE, Appellant.

WD 80831

Missouri Court of Appeals, Western District.

OPINION FILED: January 29, 2019

Eric Schmitt, Attorney General, and Garrick Aplin, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Daniel E. Hunt, Jefferson City, MO, Attorney for Appellant.

Before Division Three: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Anthony Rex Gabbert, Judges

Mark D. Pfeiffer, Presiding Judge

Mr. Matthew B. Frye ("Frye") appeals from the judgment entered by the Circuit Court of Cole County, Missouri ("trial court"), following a bench trial in which he was found guilty of the class D felony of harassment. The trial court sentenced Frye to four years' imprisonment, suspended execution of that sentence, and placed Frye on supervised probation for five years. Frye asserts that the evidence was insufficient for the trial court to find him guilty of harassment and that section 565.090(4)¹ was unconstitutionally overbroad and vague. We affirm.

Facts and Procedural History²

In September 2015, C.B. was fourteen years old and in the eighth grade. She was a member of her middle school’s wrestling team and participated in a youth wrestling club for children five years old through eighth grade. Frye was forty-seven years old and volunteered as a coach for the younger members of the wrestling club; he never coached C.B. personally. When C.B. was in seventh grade, she received a Facebook friend request from Frye. When she realized that he was one of the wrestling coaches, she accepted his friend request. Although Frye did not have contact with C.B. at wrestling practice, they did have contact on Facebook messenger.

Among the messages:

• Frye told C.B. that he told C.B.’s friend that she could be a model, and "if she wanted to take pics ... [he] could do it and she could model whatever different stuff she wanted," and "then [C.B.’s friend] asked if [C.B.] could come, which was fine with [Frye]." He told C.B., "And I don't mean this in a bad way so please don't take it wrong." C.B. interpreted the message as Frye wanting to take nude pictures of her and her friend. C.B. never arranged a time to take photos with Frye, but "[h]e tried to do that with [them]."

• Frye wrote: "I would just take the day off work and we could do it as a photo shoot.... So please don't take more into that than what it was meant.... What do you think?" C.B. thought Frye’s message "was creepy," and it made her feel "[w]eirded out, creeped out."

• Frye messaged, "[W]ould it be wrong to ask? ... If you and [C.B.’s friend] wanted to do something fun with me. I mean, like go fishing or get ice cream or something like that.... Don't be taking that the wrong way." C.B. thought a forty-seven-year-old man who was not a member of her family should not ask her to do those things.

• Frye asked C.B., "Can I say you sweet and pretty.... Sorry. That didn't come out right." C.B. did not think that it was appropriate for Frye to say such things, and his message made her feel "[c]reeped out."

• Frye asked C.B. about whether she had kissed her boyfriend. Frye’s question made C.B. feel: "Weirded out. Creeped out."

• Frye asked C.B. whether she had practiced kissing. He asked, "What kind of kiss do you want? ... You want just a nice, soft kiss or French kiss? ... Sorry, I was just asking." When C.B. saw the message, her reaction was, "That’s just creepy. That’s just wrong."

• Frye messaged C.B., "What is the deal with all of this bi stuff.... I hear so many girls say that they are bi, bisexual.... Oh, I knew you were straight.... Would have loved to fish today. You were busy all week." C.B. thought Frye was asking if she was bisexual or not, but she did not feel comfortable talking about her sexuality.

• Frye messaged C.B.: "I hear you can't wrestle anymore.... Was it because we talk too much?"

• When Frye learned that C.B. had been babysitting, he told C.B., "I could use a babysitter for me. I'm always in trouble.... Could you handle that?" C.B. asked, "Handle what?" Frye replied, "Me. I'm a little bad boy. You're so pretty." His response made C.B. feel "[c]reeped out."

• Frye told C.B., "You['re] too young yet, I think, but I love back-roading.... [W]e [can] get ice cream [and] then go driving, although I used to do other things, not eating." C.B. thought Frye was talking about "sexual things."

• Frye told C.B., "Only if I were younger.... Don't take that bad.... Sorry if that sounds wrong." C.B. thought Frye meant that "he wanted to try and get with me."

• Frye messaged C.B.: "You're a hot chick." That message made C.B. feel "[u]ncomfortable, not right, creeped out."

• Frye told C.B. about the "[b]est week of [his] life" with a girl when he was younger, that he "still remember[ed] everything we did in that old red, cherry red [C]amaro.... Don't share that with anyone.... I think I got three hours sleep a night that whole week." C.B. thought Frye meant he "got with some girl in the back of a car."

• After C.B. sent Frye a picture of her sunburned shoulder, Frye asked whether she was laying out topless. C.B. thought, "there was something not right with him. It wasn't right."

C.B. did not receive any messages from other wrestling coaches. When C.B. saw Frye at the wrestling club, she felt scared "[b]ecause I was afraid that he might like come after me or something.... [L]ike, he would try and come and kidnap me.... Rape me or kill me." C.B. did not tell her mother ("Mother") about Frye’s messages because C.B. thought Frye was a high school wrestling coach and if she told Mother and got him in trouble, he would sabotage her high school wrestling career.

On September 28, 2015, Mother inspected C.B.’s Facebook to make sure C.B. was "following the rules" regarding her permitted use of social media. While Mother was examining C.B.’s Facebook, new messages were sent to C.B. by Frye. Mother initially thought Frye was a relative on C.B.’s father’s side of the family. Mother opened one of the messages and then, after noticing that there were messages that had been sent between midnight and 2:00 a.m., started reading some of the messages Frye had previously sent to C.B. After reading the messages, Mother "locked [C.B.] out of her Facebook immediately" by changing C.B.’s Facebook passwords. Mother’s husband, a deputy with the Cole County Sheriff’s Office, called the police. He was "highly upset" by the "inappropriate messages" discovered on C.B.’s Facebook page.

Thereafter, Detective Andrew Evans of the Boone County Cyber Crimes Task Force took over the investigation. Detective Evans interviewed C.B. and questioned her about her communication with Frye. C.B. told the detective that she and Frye had been communicating for about a year. During the interview, Detective Evans observed that C.B. was visibly upset and, on several occasions, was almost in tears. Detective Evans submitted a preservation request to Facebook for Frye’s account and C.B.’s account. Search warrants were obtained for those Facebook accounts and for Frye’s residence.

Detective Evans interviewed Frye at his residence on September 29. Frye was cooperative. He admitted that he had a Facebook account, that C.B. was one of his Facebook friends, and that he would "say hi to [her] and visit with [her] every once in a while." Detective Evans gave Frye a Miranda³ warning, informed Frye that a complaint had been received regarding C.B. receiving inappropriate messages on Facebook from Frye, and questioned him about those messages. After the interview, Detective Evans arrested Frye for felony harassment.

The State filed a superseding indictment on March 14, 2017, charging that Frye, in violation of section 565.090, committed the class D felony of harassment by communicating with C.B. by Facebook messages. On the morning of trial, April 27, 2017, Frye filed a motion to dismiss, alleging that "[i]f this medium is indeed criminalized under the 2015 version of the statute th[e]n this Court must find that the statute as it existed is unconstitutionally overbroad and vague." Defense counsel argued that the statute was unconstitutionally vague and was an unconstitutional restriction on free speech. The trial court denied the motion.

At trial, the State called Mother, Mother’s husband, C.B., and Detective Evans to testify. During Detective Evans’s testimony, he described the process of "grooming":

[A] perpetrator finds a child or someone who are under the age of 18 in the State of Missouri, that they have some interest in, they will try to befriend them whether that be through a social media app or in person. Get to know them. When they feel comfortable enough, they will start trying to talk about different topics that may not be comfortable at first, kind of test the waters, kind of thing. Maybe sexual innuendos, maybe to see how comfortable they are of these conversations. A lot of times they will talk about their sexualities, their experiences with either men, boys, girls, maybe talk about some of their own experiences. Just to kind of create that comfort level to move forward with the grooming process.

Detective Evans testified that based on his training and experience, Frye was grooming C.B. for future contact. The audio recording of Detective Evans’s interview with Frye was admitted into evidence and played for the trial court. Frye did not testify at trial or present any evidence. The trial court found Frye guilty as charged and sentenced him to four years' imprisonment, suspended execution of that sentence, and placed Frye on supervised probation for five years.

Frye timely appealed.

Point I – Sufficiency of the Evidence

Standard of Review

"In reviewing the sufficiency of the evidence in a court-tried criminal case, the appellate court’s role is limited to a determination of whether the [S]tate presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty." State v. Twitty , 506 S.W.3d 345, 346 (Mo. banc 2017) (...