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09/07/93 DONALD KENNETH ALEXANDER v. STATE MISSOURI

September 7, 1993

DONALD KENNETH ALEXANDER, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY. The Honorable Jodie C. Asel, Judge

Before Turnage, C.j., P.j.; Lowenstein and Hanna, JJ.

The opinion of the court was delivered by: Turnage

Donald Kenneth Alexander was charged with two counts of harassment under § 565.090, RSMo 1986. The jury found him guilty on both counts and assessed punishment at three months in jail on each count. The trial court sentenced Alexander to three months imprisonment on the first count, suspended execution of sentence as to the second count, and placed Alexander on unsupervised probation for two years. On appeal, Alexander contends the statute is not applicable to him since the party that received his communication was not one of the parties found to be the victims of his harassment and that the statute and its application to his statements made in a civil pleading violate his right to free speech and denied him access to the courts. Alexander raises additional points which will be discussed subsequently. Affirmed.

Alexander is a graduate of the University of Missouri Law School. His application for admission to the bar was denied. Alexander sued the local bar committee and others in federal court for conspiring to ". . . delay, hinder and eventually reject" his application to the bar association. Alexander's suit was dismissed on summary judgment. On appeal the Eighth Circuit issued an opinion and Alexander filed a petition for re-hearing. Steve Scott, the Committee's attorney, received a copy of the petition. In the petition, Alexander stated:

While I fully expect that this Petition for Rehearing will be summarily denied, I am filing it so that it will be on the official record and I am sending copies to the local and national news media so that when the corpses of co-conspirators are found, no one can say that there is no legal or rational basis for the killings. Since the civil courts and the United States Attorney's office refuse to even hear or investigate my complaint, I have no recourse but deadly force to expose and end the conspiracy that is gradually taking my life as surely as if I were being fed a deadly poison. I am willing to sacrifice the rest of my shattered life in order to ensure a jury trial concerning this matter so that the general public can see the total corruption of our legal system. Men have willing died for lesser causes. I will plead self-defense and justifiable homicide . . . The blood of the co-conspirators is upon their own heads.

Scott informed two members of the Committee, Wilson and Shurtleff, of the threats.

Alexander contends his right to Due Process was violated because the Amended Information did not sufficiently state a charge under § 565.090, RSMo 1986. That statute states in pertinent part:

1. A person commits the crime of harassment if for the purpose of frightening or disturbing another person, he

(1) communicated in writing or by telephone a threat to commit any felony; or . . .

Alexander argues that the term "communicated" in subdivision (1) does not include a message delivered by a third party but requires the message to be communicated to the person alleged to have been frightened or disturbed. Alexander claims the Amended Informations in this case are deficient because the persons disturbed (Shurtleff and Wilson) were different from the person who received the communication (Scott).

Alexander cites no authority for his interpretation of the statute and his argument attempts to read into the statute a restriction that is not present. If the legislature had intended such a result the statute could have required the person disturbed and the person communicated to be the same person. However, as written the statute makes no such requirement. Our courts are not to "read into a statute words not found within the statute when the language of the statute is clear." State v. Rellihan , 662 S.W.2d 535, 545[9] (Mo. App. 1983).

Under Alexander's interpretation someone who uses the mail or other courier services to deliver a harassing written message would avoid criminal liability. Such an interpretation is not warranted since the legislature is presumed not to intend an absurd result. State ex rel. McNary v. Hais , 670 S.W.2d 494, 495[1] (Mo. banc 1984). The use of an intermediary for the delivery of a threat to commit a felony will not absolve the maker of criminal liability under Sec. 565.090(1)(1).

Alexander also challenges the statute as being overbroad in violation of his First and Fourteenth Amendment right of free speech. This statute was previously attacked for vagueness and overbreadth in State v. Koetting, ("Koetting I ") 616 S.W.2d 822 (Mo. banc 1981). The court found the statute was not unconstitutionally vague or overbroad. Id. at 825-827[2,3]. The Appellant in Koetting I was later tried under § 565.090(1)(4) for making repeated harassing telephone calls and again challenged the statute as overbroad in State v. Koetting ("Koetting II"), 691 S.W.2d 328 (Mo. App. 1985). The court relied on Koetting I and rejected the constitutional challenge. Id. at 331[8,9].

The Supreme Court has jurisdiction over challenges to a state statute involving real and substantial constitutional questions, however, "a real and substantial constitutional question is not raised when the Supreme Court has once determined the question." Hampton Foods, Inc. v. Wetterau Finance Co. , 831 S.W.2d 699, 701[3] (Mo. App. 1992). Alexander's challenge is properly before this court since the Supreme Court previously decided ยง 565.090 is not unconstitutionally vague or overbroad in Koetting I . Alexander's challenge to ...


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