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State v. Snow

Court of Appeals of Missouri, Southern District, First Division

July 31, 2014

STATE OF MISSOURI, Plaintiff-Respondent,
DUSTIN J. SNOW, Defendant-Appellant

Page 397


For Appellant: Rosalynn Koch.

For Respondent: Chris Koster (Attorney General), Adam Rowley.

Nancy Steffen Rahmeyer, P.J. -- Opinion Author, Daniel E. Scott, J. -- Concurs, William W. Francis, Jr., C.J. -- Concurs.


Page 398

Nancy Steffen Rahmeyer, P.J.

A jury found Dustin J. Snow (" Defendant" ) guilty of abuse of a child; Defendant appeals claiming that (1) the evidence was insufficient to support the jury's verdict " in that the evidence did not prove beyond a reasonable doubt that [Defendant] knew his conduct was inflicting cruel and inhuman punishment," and (2) the trial court erred in admitting a Myspace message because no foundation was established for the message showing Defendant " sent the message, or that he alone had access to his [Myspace] account." We affirm the trial court's judgment.

Viewed in accordance with our standard of review for Defendant's points relied on, the evidence admitted at trial showed the following facts. The victim child's mother (" Mother" ) met Defendant " online" in " [e]arly May of 2010." At the time, Mother had two young children -- a daughter who was two and a son who was about eleven months old. Defendant and Mother became romantically involved, and Defendant moved in with Mother in mid-July 2010 in Joplin.[1] On August 10, 2010, Mother " cooked breakfast," fed her son, and then left the children in Defendant's care in the kitchen while she showered in preparation for going to work. Mother's son began to cry for her when she left the kitchen because of his attachment to her. The only persons present in Mother's home at that time were Defendant, Mother, and her two children. On exiting the shower, Mother observed a knot on her son's left temple that " looked like . . . a golf ball," and that had not been present before her shower.

Mother immediately took her son to the emergency room at a hospital in Joplin

Page 399

where he was airlifted to a hospital in Kansas City. Tara Frazier, a board certified " child abuse pediatrician," testified as follows. On August 11, 2010, Dr. Frazier examined Mother's son at the hospital in Kansas City as part of a " child abuse team." Mother's son suffered bruising on both ears inside and outside the ear, a swollen and bruised left eye, and a swollen left temple. The swelling was sufficiently great that the son's left ear was " displaced." The bruising to both ears " show us that there were at least two episodes of trauma to the head." Dr. Frazier " came to a diagnosis of child physical abuse" meaning that:

the injuries are not consistent with what we would see during routine play, nor are they consistent with what we would see from accidental injury. The pattern of injuries that he had, as well as the history or lack thereof of how he obtained those, in my expert opinion is significant of inflicted trauma or something that was done to him.

Dr. Frazier testified, " the injuries are consistent with blunt force trauma." Dr. Frazier also testified that, with respect to the possibility the son's injuries were caused by his sibling:

there's no history provided, other than the two year old pushing him on the sofa, of any type of contact or injuries from the two year old. And the majority of his head is not consistent with what I would expect from a two-year-old, as far as their coordination and strength goes.

Later on August 10, 2010, Detective Corporal Larry Swinehart with the Joplin Police Department interviewed Defendant. Defendant told Detective Swinehart (1) Mother's son was in Defendant's care while Mother showered, (2) Mother's son was " fussy" when Mother was not present with him, (3) the only persons present in the home when Mother's son was injured were Defendant, Mother, and Mother's two children, (4) Mother's son was injured when Defendant was outside the home for six to seven minutes smoking and sending texts on his phone, and (5) Defendant did not hurt Mother's son.

Mother terminated her relationship with Defendant on or shortly after August 10, 2010, although Mother and Defendant " texted off and on." Mother has a " Myspace page," and Mother has seen Defendant's " Myspace page" and Defendant " has . . . messaged [Mother] on Myspace." Over Defendant's objection that a Myspace message had not been authenticated as having been authored by Defendant, the trial court permitted Mother to identify Exhibit 18 as " a Myspace message that was sent from" Defendant's " Myspace account to [Mother's] Myspace account" on September 17, 2010. Mother printed the message and provided it to the prosecutor's office. Although Mother was " not sure" she " had received messages from [Defendant] on Myspace before," she testified (1) she had visited Defendant's Myspace page " where he identified that this is his Myspace page," (2) Mother and Defendant had allowed each other access to their Myspace pages, (3) Defendant's Myspace page could not be found unless searched for in a specific way, (4) Mother recognized the September 17, 2010 message as being from Defendant's Myspace account by Defendant's name and photograph in the message, and (5) Defendant's photograph in the message was the photograph Mother " had seen on [Defendant's] Myspace account."

The trial court ultimately ruled on Defendant's objection stating: " Having reviewed the message contained in State'[s] Exhibit #18 and the entirety of that exhibit, ...

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