State v. Wayman

• Decision Date: 23 July 1996
• Docket Number: No. WD,WD
• Citation: 926 S.W.2d 900
• Parties: STATE of Missouri, Respondent, v. William WAYMAN, Appellant. 51168.
• Court: Missouri Court of Appeals

Page 900

926 S.W.2d 900

STATE of Missouri, Respondent, v. William WAYMAN, Appellant.

No. WD 51168.

Missouri Court of Appeals Western District.

July 23, 1996.

Jeannie Arterburn, Asst. Public Defender, Kansas City, for appellant.

Jessica Shulman, Asst. Pros. Atty., Jackson County, Claire McCaskill, Pros. Atty., Kansas City, for respondent.

Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.

ULRICH, Judge.

William Wayman appeals his conviction, after jury trial, of one count of furnishing pornographic materials to a minor in violation of section 573.040, RSMo 1994. He was acquitted of stalking, section 565.225, RSMo 1994. He alleges the trial court erred in permitting the state to introduce, over objection, the testimony of Julie Jones ¹ that she received a phone call from her son's high school informing her that a school employee had received a telephone call, from an unknown caller, stating her son would be assaulted because he was a homosexual. Mr. Wayman claims this testimony was inadmissible hearsay. Mr. Wayman also alleges the trial court erred in admitting into evidence: 1) a class reunion book, 2) testimony by various witnesses that they did not keep nude photographs of themselves in their homes, and 3) evidence of fear or distress suffered by Mr. and Mrs. Jones.

The judgment of conviction is affirmed.

William Wayman was charged with one count of furnishing pornographic materials to a minor, section 573.040, RSMo 1994, and one count of stalking, section 565.225, RSMo 1994. Count I alleged that on September 30, 1994, Mr. Wayman mailed pornographic photographs of himself to Jerry Jones, a minor. Count II, of which Mr. Wayman was acquitted, alleged that between September 29, 1994, and October 20, 1994, Mr. Wayman purposely harassed Jerry Jones by distributing letters and items of personal property to Jerry and his family and friends.

Mr. Wayman lived next door to one of Jerry's friends. Jerry was introduced to Mr. Wayman in the summer of 1994, when he was 16 years of age. He and his friend had gone next door to borrow a saw to complete a project on which they were working. Mr. Wayman allowed them to use his table saw located in his garage. That same day he purchased alcohol for the boys at a local convenience store. After this day, Jerry and his friend, visited Mr. Wayman several more times. During these visits, Mr. Wayman provided beer to the boys and allowed the two minors to smoke marijuana in his room. Mr. Wayman would discuss relationships, his criminal history and his time in prison. He also allowed Jerry to play his guitar on a few occasions.

Mr. Wayman began approaching Jerry at the supermarket at which Jerry worked. One day in September, Mr. Wayman left a guitar at the supermarket for Jerry. After work Jerry returned the guitar to Mr. Wayman expressing that he did not want the guitar nor did he want Mr. Wayman to bother him anymore. Later in the month Jerry returned home from school and found the guitar on his doorstep.

The day after Jerry returned the guitar, Mr. Wayman left a package at the high school with instructions for it to be given to Mrs. Jones, Jerry's mother. The package contained a class reunion book. Mr. Wayman and Mrs. Jones had attended high school together. The class reunion book contained descriptions of what each individual had done since graduation. Mr. Wayman had previously told Jerry he would provide the reunion book for Mrs. Jones since she had not received one at the reunion. Mrs. Jones did not remember Mr. Wayman from school and read the excerpt he had included in the book. The excerpt's principal focus was on Mr. Wayman's life of crime.

On September 30, 1994, Mr. Jones, Jerry's father, noticed a package addressed to Jerry in the mail. Mr. Jones had recently discovered that Jerry had smoked marijuana, and he was concerned about what the package may have contained. Mr. Jones opened the package in Jerry's presence. It contained seven photographs and a letter to Jerry. Several of the photographs contained explicit pornographic shots, including one of Mr. Wayman masturbating. Jerry became hysterical. The Joneses immediately notified the police.

In the next few days a letter was left at the technical school that Jerry attended, and a brown paper bag was left at the Jones residence containing young boys clothing and a Bozo the clown doll. Additionally, several family friends received letters from Mr. Wayman alleging, without foundation, that Jerry was homosexual. Mrs. Jones received a letter discussing Jerry and his alleged relationships. Mrs. Jones then received a telephone call from Jerry's high school informing her that someone had called the school and stated that Jerry may be the victim of an assault due to his alleged homosexuality. The police were immediately notified and met the Joneses at Jerry's school. The police went to Mr. Wayman's residence and received consent to search the basement where he lived. Duplicates of the pornographic photographs sent to the Jones residence were found during the search.

Prior to trial, Mr. Wayman made a motion in limine to prevent introduction of evidence regarding the phone call received by Jerry's high school. He contended that the evidence was irrelevant and constituted hearsay because it would be admitted through Mrs. Jones' testimony. He also moved to preclude the state from introducing as evidence the contents of the class reunion book, stating the entry in the book of his post-graduation activity was highly prejudicial and of little probative value. The court deferred ruling on the motions but stated that if delivery of the book to the Joneses was within the time frame of the stalking charge it would most likely be allowed into evidence. Ultimately, both pieces of evidence were admitted.

The jury returned its verdict of guilty on Count I, furnishing pornographic materials to minors and a verdict of not guilty on Count II, stalking. The jury recommended one year imprisonment in the county jail. The trial court overruled Mr. Wayman's motion for new trial and sentenced him to one year in the Jackson county jail.

I. Hearsay Evidence

Mr. Wayman's first point on appeal claims that the trial court erred in permitting the state to introduce, through the testimony of Mrs. Jones, that the high school Jerry attended received a phone call in which the caller stated Jerry would be assaulted because he was a homosexual. Mr. Wayman asserts that this was inadmissible hearsay evidence because the state failed to call the employee of the high school who received the telephone call, and he claims to have been prejudiced by its admission.

Testimony of a witness regarding the out-of-court statement of another is hearsay only when the statement is offered to prove the truth of the matter asserted therein. Matter of Estate of Glover, 854 S.W.2d 850, 853 (Mo.App.1993). If the significance of the offered statement lies solely in the fact that it is made, no issue is raised as to its truth, and the offered statement is not hearsay. Mattes v. Black & Veatch, 828 S.W.2d 903, 907 (Mo.App.1992). Furthermore, a statement offered to provide an explanation for the victim's subsequent actions is not hearsay and, therefore, is admissible. State v. Thornhill, 770 S.W.2d 701, 703 (Mo.App.1989).

Mrs. Jones testified, over objection, that the assistant principal at Jerry's school called her at work to inform her that the school had received a phone call that Jerry was homosexual and that some children from another community were going to beat him up that day. The state asserts that the purpose of this testimony was to show the effect the phone call had on the Joneses, including Jerry, and to explain their subsequent actions. The state also claims that the phone call related to letters received from Mr. Wayman soon thereafter making similar statements.

The state asserts that Mrs. Jones' testimony regarding the telephone call she received from the assistant principal was not introduced to prove the truth of the matter asserted--that Jerry was homosexual and in danger. Instead, the state claims the testimony was offered to explain the resultant emotional distress experienced by the Jerry Jones and the Jones family and the subsequent action taken. If the state is correct, the testimony is not hearsay.

Regardless of whether the testimony was hearsay, it was inadmissible because it was not relevant to the issues in the case. The testimony was irrelevant to Count I and could only have been offered in an attempt to prove the elements of Count II. A person commits the crime of stalking when he "purposely and repeatedly harasses or follows with the intent of harassing another person." § 565.225.2, RSMo 1994. "Harasses" is defined in section 565.225.1(3) as "to engage in a course of conduct...