State v. Hartwein

• Decision Date: 31 May 2022
• Docket Number: ED 109444
• Parties: STATE of Missouri, Respondent, v. Ogerta Helena HARTWEIN, Appellant.
• Court: Missouri Court of Appeals

648 S.W.3d 834

STATE of Missouri, Respondent,

v.Ogerta Helena HARTWEIN, Appellant.

No. ED 109444

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: May 31, 2022

Motion for Rehearing and/or Transfer to Supreme Court Denied July 5, 2022

Application for Transfer Denied August 30, 2022

For Appellant: Jonathan T. Sternberg, 2323 Grand Blvd., #1100, Kansas City, MO 64108.

For Respondent: Richard A. Starnes, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Presiding Judge

Introduction

Ogerta Helena Hartwein ("Hartwein") appeals from the trial court's judgment following her convictions on one felony count ("Count I") and one misdemeanor count ("Count II") of interference with custody involving her son, A.H. Hartwein raises three points on appeal. Points One and Two challenge the sufficiency of the evidence to sustain her convictions. Point Three claims the trial court erred in admitting A.H.’s hearsay testimony.

Because the State adduced sufficient evidence that Hartwein knew she did not have legal custody of A.H. when she retained custody of him in another state in June 2019, the trial court properly overruled her motion for acquittal on Count I, and we deny Point One. The trial court erred in overruling her motion for acquittal on Count II because the State presented insufficient evidence that Hartwein completed the offense of interference with custody when A.H. failed to go with her at the bus stop. To the extent that insufficient evidence supports the conviction of the completed misdemeanor offense, we grant Point Two. However, the record supports finding that the State sufficiently proved Hartwein committed attempted interference with custody and we enter judgment accordingly. Because the State showed by a preponderance of the evidence that Hartwein kept A.H. from the court proceedings with the intent to prevent A.H. from offering incriminating statements against her, the trial court did not err in allowing the State to offer A.H.’s hearsay testimony into evidence under the forfeiture-by-wrongdoing exception, and we deny Point There. Therefore, we affirm the trial court's judgment in part and reverse in part, reversing the conviction on Count II and entering judgment on attempted interference with custody. We remand the matter for the trial court to resentence the defendant consistent with this opinion.

Factual and Procedural History

We recite the following facts viewing the evidence and its reasonable available inferences in the light most favorable to the jury's verdict. State v. Lehman, 617 S.W.3d 843, 846–47 (Mo. banc 2021) (quoting State v. Gilmore, 537 S.W.3d 342, 344 (Mo. banc 2018) ). Hartwein's family law proceedings were incorporated into the record on appeal, and their relevant facts are included below.

Hartwein and Father married in 2005 and had one son, A.H., born in 2004. Hartwein and Father cross-petitioned to dissolve the marriage in 2009 and both Sought sole legal and sole physical custody of A.H. Both parties alleged verbal and physical abuse by the other. The family court ordered visitation for Father during the pendency of the dissolution proceedings. The family court found Hartwein refused to allow visitation and held her in contempt following a hearing in November 2010. The trial court's judgment of modification pending dissolution proceedings included a contempt order (the "First Contempt Order"), which found Hartwein failed to comply with the visitation orders as well as other orders regarding paying the mortgage on the marital home and complying with psychological evaluations. The First Contempt Order ordered Hartwein to vacate the marital home and awarded temporary sole legal and physical custody of A.H. to Father.

Hartwein sought a rehearing on the First Contempt Order, which the family court denied. Prior to trial, Father again moved to have Hartwein held in contempt. The dissolution case proceeded to trial in December 2010. Following trial, the family court entered its judgment (the "Original Dissolution Judgment") dissolving the marriage, distributing property, awarding Father sole legal and sole physical custody of A.H., ordering Hartwein to pay child support, and awarding Father attorneys’ fees. The accompanying parenting plan granted Hartwein overnight visitation and temporary custody as well as a four-week summer vacation with A.H. pursuant to the notice provision. The Original Dissolution Judgment noted that any changes of residence must comply with the statutory notice provision and ordered the parties to keep each other apprised of current contact information. Hartwein appealed from the Original Dissolution Judgment, and we affirmed. See Hartwein v. Hartwein, 362 S.W.3d 484 (Mo. App. E.D. 2012).

In April 2016, Father moved to modify the Original Dissolution Judgment. Father also sought an order of contempt, again alleging that Hartwein had interfered with custody. Hartwein cross-moved to modify the Original Dissolution Judgment, alleging that changed circumstances required modifying the custody and child-support provisions. Following modification proceedings, during which Hartwein was sometimes represented by counsel and other times not, the family court granted Father's family access motion and issued its judgment in January 2017 (the "2017 Judgment"). The 2017 Judgment reaffirmed Father's sole legal and sole physical custody of A.H., with Hartwein having rights of visitation. The 2017 Judgment concluded Hartwein had interfered with Father's custody more than one hundred times and set forth a custody schedule that the family court ordered the parties to follow. The 2017 Judgment granted Hartwein temporary custody of A.H. every Thursday evening after school starting February 2, 2017, and on alternate weeks Wednesday through Friday morning. Physical custody of A.H. was placed with Father at all other times. The 2017 Judgment expressly prohibited Hartwein from picking up A.H. from school on any days except Wednesday and Thursday.

The next month, Father moved to hold Hartwein in contempt of the 2017 Judgment, alleging Hartwein continued to deny him custody of A.H. The 2017 Judgment had ordered all parties to appear before the family court to determine an appropriate plan to purge Hartwein's contempt. Following a hearing at which Hartwein did not appear, the family court entered a judgment finding her in contempt of the 2017 Judgment (the "February 2017 Contempt Judgment"). In April 2017, Father moved for a warrant of commitment, alleging Hartwein had not offered to purge the contempt and continued to deny him the opportunity to exercise meaningful custody. The parties appeared before the family court, which granted Hartwein's request to purge the February 2017 Contempt Judgment on the condition that she follow the previously ordered custody schedule. Father subsequently sought a warrant of commitment alleging Hartwein continued in her failure to purge the February 2017 Contempt Judgment, but the family court set that judgment aside because no separate process had been issued. The family court entered an order to show cause and held multiple hearings during 2017 and 2018 on Father's contempt motion and on further modification proceedings for the 2017 Judgment.

In the modification proceedings, the family court issued its judgment and order on June 10, 2019 (the "2019 Judgment"). The family court concurrently issued a contempt Judgment (the "Contempt Judgment") finding Hartwein in contempt of the 2017 Judgment. The Contempt Judgment stated that Hartwein could purge the contempt by attending five sessions of counseling within sixty days and by delivering A.H. to the police department on June 14. The Contempt Judgment directed the parties to appear before the family court on June 18 to determine the status of the purge agreement at that time. The 2019 Judgment found that Hartwein's conduct in keeping A.H. from Father was a substantial and continuing change of circumstance warranting modification. The 2019 Judgment Ordered that Father maintain sole legal and sole physical custody of A.H. and that Father remain the designated residential parent for education and mailing purposes. The 2019 Judgment also ordered Hartwein to pay attorneys’ fees, ordered Hartwein to bring A.H. to the police department on June 14, and awarded Hartwein supervised visitation provided she complete five counseling sessions. The docket in the legal file reflects that a certified copy of the Contempt Judgment and 2019 Judgment was mailed to Hartwein at her pro se address on file with the court. Hartwein did not deliver A.H. to the police department on June 14 for the custody exchange. Officer Robert Fincher ("Fincher") went to Hartwein's registered local address and attempted to contact her there, but the home looked dark and vacant, and calls to her phone number reached only a busy signal. The family court entered a warrant of commitment, ordered the sheriff to take Hartwein into custody, and set a bond for $5,000. Hartwein moved to purge the Contempt Judgment, which the family court denied.

The State then charged Hartwein with two counts of interference with custody. The State filed a substitute information in lieu of an indictment. Felony Count I "Removed from State or Concealed" alleged that on or about June 14, 2019, Hartwein, knowing that she had no legal right to do so, took or enticed A.H. from the legal custody of Father, to whom the custody of A.H. had been entrusted by court order on June 10, 2019, and that Hartwein detained A.H. in another state. Misdemeanor Count II "Interference with Custody" alleged that on or about February 21, 2017, Hartwein, knowing she had no legal right to do so, took or enticed A.H. from the legal custody of Father, to whom custody had been entrusted by court order.

On June 24, 2019, Father again contacted police looking for A.H. Officer Fincher investigated and located A.H. in North Carolina with Hartwein. The State arrested Hartwein. A.H. was returned to...