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STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) vs. ) No. SD32888 ) DUSTIN J. SNOW, ) Filed: July 31, 2014 ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

Honorable David B. Mouton, Circuit Judge

AFFIRMED A jury found Dustin J. Snow (“Defendant”) guilty o f abuse of a child; Defendant appeals claiming that (1) the evidence was insuffic ient 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 w as established for the message showing Defendant “sent the message, or that he alo ne had access to his [Myspace] account.” We affirm the trial court’s judgment.2

Viewed in accordance with our standard of review f or Defendant’s points relied on, the evidence admitted at trial showed the follo wing facts. The victim child’s mother (“Mother”) met Defendant “online” in “[e]arly May o f 2010.” At the time, Mother had two young children – a daughter who was two and a s on who was about eleven months old. Defendant and Mother became romantically invo lved, 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 Defendan t’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 t wo children. On exiting the shower, Mother observed a knot on her son’s left temple tha t “looked like . . . a golf ball,” and that had not been present before her shower. Mother immediately took her son to the emergency r oom at a hospital in Joplin where he was airlifted to a hospital in Kansas City . Tara Frazier, a board certified “child abuse pediatrician,” testified as follows. On Augu st 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 t he ear, a swollen and bruised left eye, and a swollen left temple. The swelling was suffic iently great that the son’s left ear was “displaced.” The bruising to both ears “show us th at there were at least two episodes of trauma to the head.” Dr. Frazier “came to a diagno sis of child physical abuse” meaning

that:

1 “[R]ight before [Defendant] moved in,” Mother beca me pregnant and initially believed Defendant “was the father.” Mother “share[d]” this information wi th Defendant. Mother “later learn[ed] that [Defend ant] was not the father.”3 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 sign ificant 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 possibilit y the son’s injuries were caused by his sibling: there’s no history provided, other than the two yea r old pushing him on the sofa, of any type of contact or injuries from the t wo 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 stre ngth 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 s howered, (2) Mother’s son was “fussy” when Mother was not present with him, (3) t he only persons present in the home when Mother’s son was injured were Defendant, Mothe r, 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) Def endant 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 pag e” and Defendant “has . . . messaged [Mother] on Myspace.” Over Defendant’s ob jection 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 Myspa ce 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 p rosecutor’s office. Although Mother4

was “not sure” she “had received messages from [Def endant] on Myspace before,” she testified (1) she had visited Defendant’s Myspace p age “where he identified that this is his Myspace page,” (2) Mother and Defendant had all owed each other access to their Myspace pages, (3) Defendant’s Myspace page could n ot 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 p hotograph Mother “had seen on [Defendant’s] Myspace account.” The trial court ultimately ruled on Defendant’s ob jection stating: “Having reviewed the message contained in State’[s] Exhibit #18 and the entirety of that exhibit, and considering all of the circumstances the Court overrules the objection.” 2 The September 17 Myspace message read: I hope this message finds you doing okay. I love y ou, as crazy as it might sound. I miss your dimples and that beautiful smil e, the sparkle in your eyes when you looked at me. I long for death to sw eep through and carry me away, for which I am too much of a coward to tak e it upon myself. The pain I brought onto you I am truly sorry. I wo uld take it all back if I could. I hope the baby is being nice to you. How I long to be able to kiss your belly and watch it grow, feel the baby kick an d roll. Tears comfort me, which let me know there is still somewhat of a heart in my chest that will never be filled with your love again. Hell is not sounding so bad, for which I am living it now. I wonder if it could be any worse. Someday I will find out. Someday soon I hope, even pray, for who or what I don’t know. I love you and may you find better days and happier times. Subsequently during Defendant’s evidence, Defendan t’s “on-again, off-again” girlfriend and mother of a three-year-old child wit h Defendant testified that Defendant gave her the password to his Myspace account, and s he wrote and sent the September 17 Myspace message to Mother. She did so because she “wanted [Defendant] to get in

2 Defendant renewed this objection in his motion for judgment notwithstanding the verdict or new trial.5

trouble, because he was being looked at and I was h elping create suspicion.” The girlfriend acknowledged that the Myspace message di d not state “[Defendant] hit”

Mother’s son. The jury found Defendant guilty of abuse of a chil d. The jury then assessed and declared Defendant’s punishment at two years in the Department of Corrections. The trial court subsequently found the jury’s assessmen t of punishment appropriate, and sentenced Defendant to two years in the Department of Corrections. Point I – Sufficiency of the Evidence In his first point, Defendant asserts that the evi dence was insufficient to sustain the jury’s verdict “in that the evidence did not pr ove beyond a reasonable doubt that [Defendant] knew his conduct was inflicting cruel a nd inhuman punishment, as there was no evidence how the injuries came to be, and no evi dence as to amount or means of force necessary to cause the injuries.” Our Supreme Court has described our standard of re view as follows: In reviewing the sufficiency of evidence, this Cou rt limits its determination to whether a reasonable juror could h ave found guilt beyond a reasonable doubt. State v. Belton , 153 S.W.3d 307, 309 (Mo. banc 2005). In so doing, the evidence and all reasonabl e inferences therefrom are viewed in the light most favorable to the verdi ct, disregarding any evidence and inferences contrary to the verdict. I d. As such, this Court will not weigh the evidence anew since “the fact-fi nder may believe all, some, or none of the testimony of a witness when co nsidered with the facts, circumstances and other testimony in the cas e.” State v. Crawford , 68 S.W.3d 406, 408 (Mo. banc 2002).

State v. Freeman , 269 S.W.3d 422, 425 (Mo. banc 2008). As instructed by the trial court, one of the eleme nts that the jury was required to find beyond a reasonable doubt to find Defendant gu ilty of abuse of a child was “that6

defendant knew his conduct was inflicting cruel and inhuman punishment upon a child less than seventeen years old.”

Under section 562.016.3: 3 A person “acts knowingly” , [sic] or with knowledge, (1) With respect to his conduct or to attendant cir cumstances when he is aware of the nature of his conduct or that those ci rcumstances exist; or (2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result

. Further, as we stated in State v. Breedlove , 348 S.W.3d 810, 815 (Mo. App. S.D. 2011): “It is axiomatic that direct proof of a defendant’s intent is rarely available.” [State v.]Still , 216 S.W.3d [261,] 267 [(Mo. App. S.D. 2007)]. Thus, intent may be established by circumstantial e vidence. Id. “The trierof-fact also is permitted to infer a defendant’s in tent from the surrounding facts or from the act itself.” Id. Although the phrase “cruel and inhuman punishment” is not defined statutorily, “[t]hese terms have a settled common-law meaning an d are words of general and common usage about which there is no great dispute as to meaning.” State v. Brown , 660 S.W.2d 694, 698 (Mo. banc 1983). In addition, the plain and ordinary meaning of the word “punishment” in this phrase “includes ‘sev ere, rough, or disastrous treatment.’” State v. Silvey , 980 S.W.2d 103, 108 (Mo. App. S.D. 1998). The ph rase includes (1) slapping or hitting a child who was six on the face and neck with sufficient force to cause bruises that still were visible two days later, State v. Sumowski , 794 S.W.2d 643 (Mo. banc 1990), (2) spanking a two-year-old child multi ple times in a short period by hand with sufficient force to cause bruises, State v. Breedlove , 348 S.W.3d 810 (Mo. App. S.D. 2011), and (3) choking a child that left visib le signs of physical injury only briefly,

State v. Hines , 377 S.W.3d 648 (Mo. App. S.D. 2012).

3 All references to statutes are to RSMo 2000, unles s otherwise specified.7

In this case, Defendant told a law enforcement off icer that (1) Mother’s son was injured when Defendant was outside the home for a s hort time while Mother was in the shower and son was in Defendant’s care, and (2) the only persons present in the home when Mother’s son was injured were Defendant, Mothe r, and Mother’s two children (her son who was about fourteen months old and her daugh ter who was two). On exiting the shower, Mother observed a knot on her son’s left te mple that “looked like . . . a golf ball,” and that had not been present before her sho wer. Mother immediately took her son to the emergency room at a local hospital. Dr. Fra zier testified that she “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 sign ificant of inflicted trauma or something that was done to him. Dr. Frazier further testified that “the injuries ar e consistent with blunt force trauma.” Dr. Frazier also testified that, with respect to the po ssibility the son’s injuries were caused by his sibling: there’s no history provided, other than the two yea r old pushing him on the sofa, of any type of contact or injuries from the t wo 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 stre ngth goes. This evidence was sufficient to permit a reasonable juror to find beyond a reasonable doubt that Defendant caused the injuries to the son ’s head that resulted in the son being taken to the emergency room.

The evidence also showed that Mother’s son was air lifted to a hospital in Kansas City, and testimony and photographs showed: Mother ’s son suffered bruising on both ears inside and outside the ear, a swollen and brui sed left eye, and a swollen left temple.8

The swelling was sufficiently great that the son’s left ear was “displaced.” Dr. Frazier testified that the bruising to both ears “show[s] u s that there were at least two episodes of

trauma to the head.” That evidence combined with t he evidence that showed Defendant caused the son’s injuries is sufficient to permit a reasonable juror to find beyond a

reasonable doubt that Defendant’s acts were “cruel and inhuman punishment,” and that Defendant acted knowingly. Defendant’s first point is denied.

Point II – Foundation for Myspace Message In his second point, Defendant contends the trial court erred in admitting a Myspace message received by Mother from Defendant’s Myspace account because no foundation was established for the message showing Defendant “sent the message, or that he alone had access to his [Myspace] account.”

We review a trial court’s decision to admit eviden ce as follows:

A trial court has broad discretion to admit or exc lude evidence at trial. This standard of review compels the reversa l of a trial court’s ruling on the admission of evidence only if the court has clearly abused its discretion. That discretion is abused when a rulin g is clearly against the logic of the circumstances and is so unreasonable a s to indicate a lack of careful consideration. Additionally, on direct app eal, this Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defen dant of a fair trial. Trial court error is not prejudicial unless there is a re asonable probability that the trial court's error affected the outcome of the trial.

State v. Forrest , 183 S.W.3d 218, 223-24 (Mo. banc 2006) (internal footnotes and quotations omitted). The defendant has the burden to show prejudice. State v. Morgenroth , 227 S.W.3d 517, 523 (Mo. App. S.D. 2007). Howeve r, in evaluating whether trial court error was prejudicial, we consi der the whole record and do not view9

the evidence in the light most favorable to the jud gment. State v. Foster , 244 S.W.3d 800, 804 (Mo. App. S.D. 2008). To be admissible, a writing, like the Myspace mess age in this appeal, “must be authenticated, i.e., the proponent thereof must sho w that it is, in fact, what it is claimed to

be.” Saunders v. Bowersox , 179 S.W.3d 288, 292 (Mo. App. S.D. 2005) (interna l citations omitted). 4 Although the fact “a document purports to have be en written and signed by the person to whom it is attributed, . . . standing alone, is insufficient to establish its authenticity and genuineness,” State v. Cravens , 132 S.W.3d 919, 930 (Mo. App. S.D. 2004) (internal citation omitted), “[a]ut henticity of a writing may be proved by

. . . circumstantial evidence.” State v. Durham , 822 S.W.2d 453, 455 (Mo. App. E.D. 1991) (internal citation omitted). Finally, “[w]he ther sufficient foundation has been laid to justify the admission of evidence is a matter fo r the trial court to determine in the exercise of its [] sound discretion.” State v. Cravens , 132 S.W.3d at 929 (internal citation omitted). If there was evidence to support a trial court’s exercise of discretion in finding that a writing had been authenticated sufficiently to justify admission of the writing, weaknesses in the evidence authenticating the writi ng should be for the jury to consider in determining the weight the jury accords the writ ing. See State v. Malone , 694 S.W.2d 723, 727 (Mo. banc 1985) (in the context of a witne ss’ identification at trial of an unmarked bullet removed from a murder victim, the C ourt stated “[a]ny such weakness in identification was properly the subject of cross-ex amination, and was for the jury to consider in assessing the weight of the evidence.”) ; State v. Bowman , 337 S.W.3d 679,

4 Defendant has not referred us to any Missouri auth ority that specifically addresses the evidentiary foundation necessary for a “Myspace message,” and w e are not aware of any. However, we believe the evidentiary foundation for a communication through Myspace should follow the rules for writings in general.10

689 (Mo. banc 2011) (similar statement in the conte xt of two witnesses’ visual identification at trial of a victim’s underwear). In this appeal, the Myspace message was relevant o nly if Defendant authored the message. Mother (1) testified she has a “Myspace p age,” and has seen Defendant’s “Myspace page,” (2) identified the message as “a My space message that was sent from” Defendant’s “Myspace account to [Mother’s] Myspace account” slightly more than one month after Mother’s son was injured, and (3) print ed the message and provided it to the prosecutor’s office. Mother also 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 message as being from Defendant’s Myspace account by Defendant ’s name and photograph in the message, and (5) Defendant’s photograph in the mess age was the photograph Mother “had seen on [Defendant’s] Myspace account.” The b ody of the message also contains information about Mother’s pregnancy and Defendant’ s relationship with and feelings for Mother that, at the time of the message when Mother was less than three months pregnant, were unlikely to have been known by many persons other than Defendant and

Mother. This evidence was sufficient to support a finding that Defendant authored the Myspace message. Weaknesses in the authentication evidence (including the testimony of Defendant’s girlfriend that she wrote the messag e because she “wanted [Defendant] to get in trouble, because he was being looked at and I was helping create suspicion”) were for the jury to consider in determining the weight the jury accorded the Myspace11

message. As a result, the admission of the Myspace message was not a clear abuse of the trial court’s discretion because after, in the tria l court’s words, reviewing the “entirety” of the message and “considering all of the circumstanc es,” a conclusion that Defendant authored the message was not clearly against the lo gic of the circumstances and so

unreasonable as to indicate a lack of careful consi deration. Defendant’s second point is denied. The trial court’s judgment is affirmed.

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