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T.R.P. v. B.B.

Court of Appeals of Missouri, Eastern District, Second Division

June 26, 2018

T.R.P., Respondent,
v.
B.B., Appellant.

          Appeal from the Circuit Court of St. Louis County Honorable John R. Essner

          PHILIP M. HESS, JUDGE

         Introduction

         B.B. (Appellant) appeals from the judgment of Circuit Court of St. Louis County entering a full order of protection barring him from being within 500 feet of T.R.P. (Respondent). Respondent filed his petition for order of protection after receiving harassing and threatening text messages and phone calls from Appellant. Respondent was dating the mother of Appellant's child at the time. On appeal, Appellant argues: 1) the trial court erred when it admitted a text message without proper foundation; and 2) there was insufficient evidence to support the judgment because Respondent failed to prove he was subjectively alarmed by Appellant's conduct. For reasons explained herein, we reverse and remand.

          Factual Background

         In September 2017, Respondent filed a petition for an order of protection against Appellant. A hearing was held on Respondent's petition.[1] The only two witnesses who testified were Appellant and Respondent. The evidence, viewed in the light most favorable to the verdict, [2] is as follows.

         Respondent received text messages and phone calls from Appellant in August and September 2017. In these text messages and phone calls, Appellant threatened Respondent and his business. When he received the messages, Respondent was dating the mother of Appellant's child. Respondent received four text messages he believed Appellant sent him. Three of the text messages came from a phone number with a 618 area code, which Appellant admitted was his. Those texts stated:

Text Message 1: You old and gray mother-[expletive], you should be ashamed of yourself. Do you really think that [Respondent's girlfriend] can introduce you to her family and friends as her boyfriend. . . . [L]eave my baby mother alone and go and find someone in your class because embarrass [sic] going places with your old ugly ass. . . .
Text Message 2: I have your medicine so I'm going to see how you not going to past [sic] on that herpes.
Text Message 3: If you want your business to survive, leave my woman alone [Respondent]. I'm warning you! And I hope you catch that herpes she got.

The fourth and final text message came from a phone number with a 314 area code, which Appellant denied was his. The fourth text message stated:

Text Message 4: I heard you still messing with that nasty ass bitch [Respondent's girlfriend]. I want her baby daddy and his friend them [sic] f[-]k you up.

         Respondent testified he received phone calls from Appellant "all the time." Respondent described the substance of the phone calls as: "[Appellant] just tells me if I don't stop messing with his baby mamma he's going to 'F me up. That's the same conversation every single time he call." Respondent also testified Appellant would contact him from different numbers. When questioned by the trial court on how he knew that Appellant was the person messaging and calling him, Respondent explained, "[I]t's like I stated, he's using different numbers to call all the time. He doesn't call from one number. ... I mean, he's the one who is calling me and texting me from those multiple numbers .... It's him on the phone when he calls from those numbers saying the same thing, like I said." Respondent testified Appellant identified himself during some of the phone calls, and repeatedly told him to stay away from his "baby mama."

         Respondent explained he filed the order of protection because, "[As] the text messages start coming in they-I'm looking at this and ...


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