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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 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. 
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 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 

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: 

 

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 “[R]ight before [Defendant] moved in,” Mother became pregnant and initially believed Defendant “was 

the father.” Mother “share[d]” this information with Defendant. Mother “later learn[ed] that [Defendant] 

was not the father.” 
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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 
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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, 

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 you, as crazy as it might 

sound. I miss your dimples and that beautiful smile, the sparkle in your 

eyes when you looked at me. I long for death to sweep through and carry 

me away, for which I am too much of a coward to take it upon myself. 

The pain I brought onto you I am truly sorry. I would 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 and 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, Defendant’s “on-again, off-again” 

girlfriend and mother of a three-year-old child with Defendant testified that Defendant 

gave her the password to his Myspace account, and she wrote and sent the September 17 

Myspace message to Mother. She did so because she “wanted [Defendant] to get in 

 

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 Defendant renewed this objection in his motion for judgment notwithstanding the verdict or new trial. 
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trouble, because he was being looked at and I was helping create suspicion.” The 

girlfriend acknowledged that the Myspace message did not state “[Defendant] hit” 

Mother’s son. 

 The jury found Defendant guilty of abuse of a child. 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 assessment 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 evidence was insufficient to sustain 

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, as there was 

no evidence how the injuries came to be, and no evidence as to amount or means of force 

necessary to cause the injuries.” 

 Our Supreme Court has described our standard of review as follows: 

 In reviewing the sufficiency of evidence, this Court limits its 

determination to whether a reasonable juror could have 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 reasonable inferences therefrom 

are viewed in the light most favorable to the verdict, disregarding any 

evidence and inferences contrary to the verdict. Id. As such, this Court 

will not weigh the evidence anew since “the fact-finder may believe all, 

some, or none of the testimony of a witness when considered with the 

facts, circumstances and other testimony in the case.” 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 elements that the jury was required to 

find beyond a reasonable doubt to find Defendant guilty of abuse of a child was “that 
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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 circumstances when he is 

aware of the nature of his conduct or that those circumstances 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 evidence. Id. “The trierof-fact also is permitted to infer a defendant’s intent 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 and 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 ‘severe, rough, or disastrous treatment.’” 

State v. Silvey, 980 S.W.2d 103, 108 (Mo. App. S.D. 1998). The phrase 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 multiple 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 visible signs of physical injury only briefly, 

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

 

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 All references to statutes are to RSMo 2000, unless otherwise specified. 
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 In this case, Defendant told a law enforcement officer that (1) Mother’s son was 

injured when Defendant was outside the home for a short 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, Mother, and Mother’s two children (her 

son who was about fourteen months old and her daughter who was two). 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 local hospital. Dr. Frazier 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 significant of inflicted 

trauma or something that was done to him. 

Dr. Frazier further testified that “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. 

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 airlifted 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 bruised left eye, and a swollen left temple. 
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The swelling was sufficiently great that the son’s left ear was “displaced.” Dr. Frazier 

testified that the bruising to both ears “show[s] us that there were at least two episodes of 

trauma to the head.” That evidence combined with the 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 evidence as follows: 

 A trial court has broad discretion to admit or exclude evidence at 

trial. This standard of review compels the reversal 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 ruling is clearly against the 

logic of the circumstances and is so unreasonable as to indicate a lack of 

careful consideration. Additionally, on direct appeal, 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 defendant of a fair trial. Trial 

court error is not prejudicial unless there is a reasonable 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). However, in evaluating 

whether trial court error was prejudicial, we consider the whole record and do not view 
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the evidence in the light most favorable to the judgment. State v. Foster, 244 S.W.3d 

800, 804 (Mo. App. S.D. 2008). 

 To be admissible, a writing, like the Myspace message in this appeal, “must be 

authenticated, i.e., the proponent thereof must show 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) (internal 

citations omitted).4 Although the fact “a document purports to have been 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]uthenticity 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]hether sufficient foundation has been laid 

to justify the admission of evidence is a matter for 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 writing should be for the jury to consider 

in determining the weight the jury accords the writing. See State v. Malone, 694 S.W.2d 

723, 727 (Mo. banc 1985) (in the context of a witness’ identification at trial of an 

unmarked bullet removed from a murder victim, the Court stated “[a]ny such weakness in 

identification was properly the subject of cross-examination, and was for the jury to 

consider in assessing the weight of the evidence.”); State v. Bowman, 337 S.W.3d 679, 

 

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 Defendant has not referred us to any Missouri authority that specifically addresses the evidentiary 

foundation necessary for a “Myspace message,” and we are not aware of any. However, we believe the 

evidentiary foundation for a communication through Myspace should follow the rules for writings in 

general. 
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689 (Mo. banc 2011) (similar statement in the context of two witnesses’ visual 

identification at trial of a victim’s underwear). 

 In this appeal, the Myspace message was relevant only if Defendant authored the 

message. Mother (1) testified she has a “Myspace page,” and has seen Defendant’s 

“Myspace page,” (2) identified the message as “a Myspace 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) printed 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 message was the photograph Mother 

“had seen on [Defendant’s] Myspace account.” The body 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 message 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 Myspace 
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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 trial court’s words, reviewing the “entirety” of 

the message and “considering all of the circumstances,” a conclusion that Defendant 

authored the message was not clearly against the logic of the circumstances and so 

unreasonable as to indicate a lack of careful consideration. 

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