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State v. Dixon

Court of Appeals of Missouri, Southern District, Second Division

August 4, 2016

STATE OF MISSOURI, Respondent,
v.
DONALD DIXON, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY Honorable R. Craig Carter, Circuit Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Donald 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 trial court.

         Factual and Procedural Background

         Dixon 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.

         Prior to October 17, 2014, Dixon and Catherine Dixon ("Catherine")[1] 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.

         Due to 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.[2] 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.

         At 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 cutters.

         Dixon 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.

         Catherine, 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.

         A male 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.

         On December 2, 2014, a complaint was filed charging Dixon with the class C felony of burglary in the second degree, [3] pursuant to section 569.170.[4]

         On 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 second-degree burglary.

         Dixon 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.

         Angelo 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.

         Angelo 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.

         Dixon's 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."

         Seeking 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 shaking."

         Later 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 subject.[5]

         When 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.

         The 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.[6]

         The 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 ...


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