Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF OZARK COUNTY Honorable R. Craig
Carter, Circuit Judge
WILLIAM W. FRANCIS, JR., J.
Dixon ("Dixon") appeals the judgment of the trial
court following his conviction of the class C felony of
burglary in the second degree. Following a bench trial, the
trial judge sentenced Dixon to seven years'
incarceration, suspended execution of the sentence, and
ordered a 120-day term of shock incarceration with five
years' supervised probation. Dixon challenges the
judgment of the trial court in four points on appeal. Finding
no merit to Dixon's points, we affirm the judgment of the
and Procedural Background
challenges the sufficiency of the evidence to support his
conviction. "When judging the sufficiency of the
evidence to support a conviction, appellate courts . . .
accept as true all evidence tending to prove guilt together
with all reasonable inferences that support the verdict and
ignore all contrary evidence and inferences." State
v. Wooden, 388 S.W.3d 522, 527 (Mo. banc 2013). These
principles guide our recitation of the facts in this matter.
to October 17, 2014, Dixon and Catherine Dixon
("Catherine") had a turbulent five-year marriage. Dixon
had physically assaulted Catherine, stole the key to her
vehicle, and surreptitiously entered Catherine's
residence while she was sleeping by jimmying the door open
with a credit card.
disquiet in the marriage, Catherine often stayed at the home
of Linda Angelo ("Angelo"), a nearby neighbor and
friend. Dixon would yell across the street at Angelo,
threatening her, and went so far as to threaten to burn down
her house. On October 17, 2014, Catherine had been living
with her daughter in her daughter's house located
directly across the street from Angelo. The daughter had
recently moved out prior to the events of October 17, 2014,
and Catherine was living there alone. A few days prior to October 17, 2014,
Dixon circled the house on a motorcycle in an apparent
attempt to harass and intimidate Catherine. On October 15,
2014, Angelo and Catherine both obtained ex parte orders of
protection against Dixon.
around 3:30 a.m. on October 17, 2014, Dixon parked his car
some distance from Catherine's daughter's house, and
walked to the back of the house. He took off his boots and
climbed on a bucket to gain access to the kitchen window. He
propped open the window with a screwdriver, and entered the
house. Outside the house, he left a large logging chain with
a "big knot" at one end, duct tape, and bolt
made his way into the bedroom where Catherine was sleeping.
He stopped at the head of the bed, shouted "hey, "
and then said "Dont [sic] Fucking Move." He
screamed obscenities at Catherine, threatened her, and asked
if she "went to the cops." Dixon demanded that
Catherine leave with him, stating he had a truck parked about
three miles away. Dixon also threatened to "burn"
her and the neighbors out. Dixon forced Catherine to stay
with him until around 8:30 a.m. the next morning when he
allowed Catherine to take her dog out. As she was chaining up
her dog, Catherine saw Dixon's "boots, duct tape,
bolt cutters and buckets stacked up by the kitchen
window[.]" She "took off running up the driveway
across the street" to Angelo's house. Dixon, seeing
Catherine run to the neighbor's house, immediately left
in Catherine's van.
hysterical and shaking, told Angelo "he was here, he was
here, " that Dixon had held her captive and told her not
to move when she was in bed, and that she finally got away.
friend of Angelo's called the Ozark County Sheriff's
Department and handed the phone to Catherine, who described
the situation. Chief Deputy Winston Collins ("Deputy
Collins"), with the Ozark County Sheriff's office,
responded. When Deputy Collins spoke with Catherine at her
house, she was very excited and fearful. She told Deputy
Collins that Dixon had held her against her will for several
hours that morning and had threatened to hurt her. She also
said that Dixon had left the scene in her van. Catherine
provided the sheriff's department a voluntary written
statement of events that occurred on October 17, 2014.
December 2, 2014, a complaint was filed charging Dixon with
the class C felony of burglary in the second degree,
 pursuant to section
February 24, 2015, Dixon's preliminary hearing was held.
Catherine was present with her attorney. During
Catherine's testimony, the trial court interrupted
proceedings due to Catherine was "being evasive and
difficult in answering questions, " and went on the
record to determine whether Catherine had initially provided
false information to the sheriff's department. Catherine
then testified her written statement was "pretty
much" an accurate account of what happened on October
17, 2014. Dixon was later charged by information with
waived his right to a jury trial, and a bench trial commenced
on May 1, 2015. Catherine invoked the spousal privilege and
did not testify against Dixon at trial.
testified that in the cold and damp morning of October 17,
2014, Catherine ran up to her house wearing a short-sleeve
shirt and no shoes. Angelo indicated that Catherine was
standing there shaking, telling her "he was here, he was
here." Dixon's counsel objected on the basis of
hearsay, which the trial court did not rule upon. Angelo then
testified that Catherine said that Dixon was here. The
prosecutor then asked, "And while she was in that state,
did she tell you what had happened?" Dixon's counsel
again objected on the basis of hearsay. The prosecutor argued
that the statements fell under the excited utterance
exception, and the trial court overruled the objection.
then testified as follows:
She said [Dixon] had held her captive, and she was on the
phone talking to the police by this time. And she said
[Dixon] had held her captive. And I gave her a pair of shoes
and the sweater right away, you know. And she said that he
had held her captive and that she finally got away.
And I said, well, how did you get away? And she said, because
of the dog. . . . He told her not to move, when she was in
bed, she said.
counsel again objected on the basis of hearsay. The trial
court overruled the objection in part, but indicated that a
foundation needed to be shown that "this excitement
causing the excited utterance is continuing."
to lay this foundation, the prosecutor asked Angelo,
"When -- when she made these statements to you about
that he told her not to move and held her there, was she
still hysterical and shaking?" Angelo responded,
"Pretty much. . . . She was very excitable, just
in the trial, the prosecutor offered Exhibit
2-Catherine's written statement to the sheriff's
department-in evidence during Deputy Collins' testimony.
Dixon's counsel objected on hearsay grounds. The trial
court received the exhibit, but deferred ruling on the
hearsay objection until it could review the law on the
the prosecutor finished presenting live testimony, he
announced his intent to read into the court record the
transcript of Catherine's preliminary hearing testimony,
which had previously been filed with the court. Defense
counsel objected on the basis that the State was offering a
partial transcript of what was functionally an investigation
into whether Catherine was guilty of perjury, and that the
admission of the testimony violated the Confrontation Clause.
The trial court allowed the prosecutor to read the transcript
into the record.
State offered in evidence Catherine's petition for order
of protection ("Exhibit 1"). Defense counsel
objected on the basis of prior bad acts and hearsay. The
trial court accepted the exhibit, but reserved ruling on the
objection pending review of case law.
trial court took the case under advisement and issued a
judgment on May 11, 2015, finding Dixon guilty of burglary in
the second degree. The trial court sentenced Dixon to seven
years' imprisonment, suspended execution of sentence,
ordered Dixon to complete a 120-day term of shock