State v. Placke, 51907
| Decision Date | 28 July 1987 |
| Docket Number | No. 51907,51907 |
| Citation | 733 S.W.2d 847 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Donald PLACKE, Jr., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Bernard Edelman, Clayton, for defendant-appellant.
Jeffrey Scott Jamieson, Anthony P. Gonzales, Asst. Circuit Attys., St. Louis, for plaintiff-respondent.
Donald Placke appeals from a conviction of harassment in violation of § 565.090 RSMo 1978 in a jury waived trial. Appellant was sentenced to ten days imprisonment, however, the execution of the sentence was suspended and appellant was placed on unsupervised probation for a period of one year. We affirm.
The record reveals that James Scheetz, the victim, testified at trial that on November 1, 1985, he owned a telephone answering machine. He further testified that on November 1, 1985, he left his home to go out on a date with appellant's former wife. He returned to his home the next day at approximately 4:30 p.m., and subsequently checked his recorder for messages. There were four calls recorded on the cassette tape. The calls were as follows:
1. Tone indicating new message:
2. Tone indicating new message:
3. Tone indicating new message:
4. Tone indicating new message:
Scheetz played these calls in one continuous period. He testified that there were four separate calls on the tape as opposed to one continuous call. The calls lasted approximately 30 seconds.
Scheetz identified the voice of the caller as that of the appellant. Scheetz had been acquainted with the appellant for approximately ten years, and testified that he had not had any problems with appellant in the past. Scheetz was, however, dating appellant's former wife.
Susan Winter, a friend of appellant's former wife, testified that she had received a phone call from appellant on November 2, 1985, wherein he stated, "I will kill and maim you."
Maureen Krabbe, appellant's former mother-in-law, testified that she had also received a phone call on November 2, 1985, between 4:00 a.m. and 5:00 a.m., wherein appellant stated, "You've got to be out of your G-damn mind."
John Kavadas, a police officer for the City of St. Louis, testified that on November 7, 1985, Scheetz gave him a cassette tape which contained four harassing telephone calls. He identified the cassette tape which was played in court as that of the tape which he had received from Scheetz.
At the close of the state's evidence, appellant made a motion for a directed verdict. After appellant's motion for directed verdict was overruled, appellant took the stand. Appellant denied calling Susan Winter, Maureen Krabbe, and James Scheetz. Appellant testified that he had spoken with Scheetz several times in the past, but did not recall any telephone calls between them. At the close of evidence, appellant's motion for judgment of acquittal was overruled, and the court found appellant guilty of harassment.
Appellant contends the trial court erred by overruling his motion for judgment of acquittal because the state did not prove that appellant made repeated harassing telephone calls for the purpose of disturbing the victim. Appellant also asserts that the trial court erred by allowing two witnesses to testify as to phone calls they received from appellant as those calls constituted proof of other crimes.
Initially, we will address appellant's contention that the trial court erred in failing to sustain appellant's motion for judgment of acquittal because the evidence was insufficient to support a conviction of harassment.
A person commits the crime of harassment, if, for the purpose of frightening or disturbing another person, he:
(2) [m]akes a telephone call or communication in writing and uses coarse language offensive to one of average sensibility; or
(3) [m]akes a telephone call anonymously; or
(4) [m]akes repeated telephone calls.
Section 565.090 RSMo 1978.
The sufficiency of the evidence is determined by the same standard in a court-tried case as in a jury-tried case. State v. Koetting, 691 S.W.2d 328, 329 (Mo.App.1985). In reviewing the sufficiency of the evidence to support the conviction, the reviewing court must accept as true all evidence, direct and circumstantial, together with all reasonable inferences that support the judgment, and disregard all contrary evidence and inferences. Id. at 330 . The appellate court may not weigh the evidence and may review the record only to determine whether there was sufficient evidence from which the trier of fact could reasonably have found the defendant guilty as charged. Id. at 329-330 .
Appellant points out several reasons to support his assertion that all of the essential elements of § 565.090 RSMo 1978 were not established, and therefore, appellant's conviction cannot stand. Appellant alleges that:
1. No call was made directly from the appellant to the victim, as the call was made to a tape recorder and the victim played the calls upon returning to his home;
2. There was no evidence that the calls were directed to the victim, only that the victim played the tape and listened to the calls;
3. The victim was not home when the calls were received, and thus the caller could only speculate as to whether the victim actually received the call; and
4. There was no showing of "repeated" calls.
We will discuss each of appellant's contentions in turn.
We are not persuaded by appellant's argument that one cannot be convicted of making harassing telephone calls where the calls were made to an answering machine rather than directly to the victim. A caller who leaves a message on an answering machine intends that the owner of the machine will receive his message. The very purpose of an answering machine is to ensure that the owner will receive all messages communicated to him throughout the day.
In the instant case, it is apparent that appellant intended to communicate four threatening messages to Scheetz. Scheetz was obviously disturbed by appellant's phone calls, because after listening to his messages he called the police. The fact that the calls were recorded on tape has no less disturbing impact on the victim than had appellant spoken with him personally. We find that harassing phone calls made directly to an individual's telephone answering machine falls within the purview of § 565.090 RSMo 1978.
Appellant next contends that there was no evidence that the calls were directed at Scheetz. However, the record indicates that Scheetz owned the machine, and in two of the four messages appellant began the calls by addressing "Jim Shoes",...
To continue reading
Request your trial
-
State v. Wilson
...which the trial court could have reasonably found Defendant guilty. State v. Harris, 774 S.W.2d 487, 491 (Mo.App.1989); State v. Placke, 733 S.W.2d 847, 849 (Mo.App.1987). So viewed, the evidence establishes that in the "early morning hours" of February 6, 1991, Corporal Ron Hutchison of th......
-
Durie v. State
...be traced to the defendant, the court reversed the conviction, finding the statutory term "repeatedly" was ambiguous. In State v. Placke, 733 S.W.2d 847 (Mo.Ct.App.1987), the court held that four answering machine messages left in close temporal proximity satisfied the "repeated" requiremen......
-
State v. Harris, 54710
...all evidence and reasonable inferences that support the judgment and disregard all contrary evidence and inferences. State v. Placke, 733 S.W.2d 847, 849 (Mo.App.1987). We may not weigh the evidence but we review the record only to ascertain whether there was sufficient evidence from which ......
-
Durie v. State, Case No. 5D02-905 (FL 1/21/2005), Case No. 5D02-905.
...traced to the defendant, the court reversed the conviction, finding the statutory term "repeatedly" was ambiguous. In State v. Placke, 733 S.W.2d 847 (Mo. Ct. App. 1987), the court held that four answering machine messages left in close temporal proximity satisfied the "repeated" requiremen......
-
Ask not for whom the bell tolls - ask why a look at the harassing telephone call statutes.
...to one another to rightly be called a single episode, and not separated by periods of months or years." The case of State v. Placke, 733 S.W2d 847 (Mo. Ct. App. 1987), addresses the meaning of the term "repeated" in light of messages left on an answering machine. In this case the defendant ......