STATE OF MISSOURI, Plaintiff-Respondent v. JANE E. WARE

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD33002
)
JANE E. WARE, ) Filed: November 12, 2014
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable John D. Wiggins, Senior Judge
AFFIRMED
In a court-tried trial, Jane E. Ware (“Appellant”) was convicted of the class C
felony of tampering with a witness, a violation of section 575.270,1 for an event that
occurred on September 8, 2011. A person commits the crime of tampering with a witness
when he uses force, threats, or deception for the purpose of inducing a witness or a
prospective witness to (1) disobey a subpoena or other legal process, or (2) absent
himself or avoid subpoena or other legal process, or (3) withhold evidence, information
or documents, or (4) testify falsely. Section 575.270.1(2). Appellant challenges the
sufficiency of the evidence concerning the use of force or threats to “withhold evidence
1
All references to statutes are to RSMo Cum. Supp. 2005, unless otherwise specified.
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or information” and “to avoid legal process in the felony prosecution” of her husband,
Christopher Ware. We reject Appellant’s claims of error and affirm the judgment.
Appellant is married to Christopher Ware; Christopher Ware is the father of ten-
year-old C.D.C. and was charged with the criminal nonsupport of the child. Prior to the
September date, Mr. Ware had very little interaction with C.D.C., and had only one
overnight visit. After the criminal charges for nonsupport, Appellant and Mr. Ware
continually called the mother of C.D.C. (“Mother”) in an attempt to get Mother to drop
the criminal nonsupport charges against him. Mr. Ware threatened Mother by saying that
she did not know who she was “messing with”; he told Mother that if she did not sign
child support papers prepared by his attorneys, he would fight her for full custody of
C.D.C. so that he would not have to pay child support. He also told Mother that “the
State’s on his butt and he needed to get it taken care of.” Appellant made similar
statements to Mother during this time frame, including “[Mr. Ware] said you might as
well sign child support papers because you’re not going to receive a dime.”
On September 8, 2011, Mr. Ware and Appellant arrived at the school where
C.D.C. attended, stating that they wanted to pick up the child. Neither Appellant, nor Mr.
Ware, had sought Mother’s permission to pick up the child from school; further, they did
not have any prior permission to ever pick up the child from school in the middle of the
day. When the school questioned his right to pick up the child, Mr. Ware produced a
copy of the birth certificate which listed him as the father of C.D.C. and stated that they
were picking C.D.C. up to meet Mother at the courthouse.2 The school official was
alarmed and called the resource officer for the school but was unable to reach him; she
2
He also explained that he did not see C.D.C. often and that she might be surprised to see him. Indeed, she
was surprised, stepped back a little, and ultimately told Mother that she was afraid she was never going to
see Mother again.
2
was told by the police department that if Mr. Ware had proper identification and the
original birth certificate, that the school must release the child.
Mother, in the meantime, had received several calls from the Wares but had not
answered them; when she did answer Appellant’s calls, she was told that “we have
C.D.C.” Mother called police to report that her daughter had been picked up from
school; because the police had been alerted by the earlier calls from the school, Mother
was advised to go to the police station. Mother also called her mother, the grandmother
of the child, to report the situation. The grandmother called Mr. Ware and was told that
he had C.D.C. and would not bring her back until Mother went to “sign the papers.”
When the grandmother asked him what papers he was talking about, Mr. Ware answered,
“saying that she doesn’t want me to pay child support.”
Appellant called Mother while Mother was at the police station. The officer
observed that Mother was in shock and afraid for her daughter, appearing to be hysterical.
While on the phone, Mother kept saying, “I’ll do whatever you want, I’ll sign whatever
you want, I just—I just want my baby.” The officer instructed Mother to go ahead to the
Division of Family Services’ office and he would meet her there with several other police
officers. Mother told her caseworker that her child had been “taken” and she would not
get the child back unless she signed some papers giving up her rights to child support.
Appellant told Mother, who was crying, to sign the papers and then she could have her
child back.
Mr. Ware and Appellant took the child to McDonald’s and to Mr. Ware’s
attorney’s office. After the visit with Mr. Ware’s attorney, Mr. Ware received a call from
his attorney who said something to the effect of, “What have you done? Get that child
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back to school.” The Wares complied and returned the child to the school. The papers
were, in fact, a parenting plan that Mr. Ware’s attorney had prepared; they set out the
custodial rights and specifically stated that Mr. Ware would not pay child support in the
future. The plan did not mention the pending criminal nonsupport charges against Mr.
Ware nor did Mother know whether signing the papers would dismiss the criminal
charges against Mr. Ware. After the police officer arrived at the Division of Family
Services’ office, the car that had been described to the officer as the car belonging to Mr.
Ware left. The police pursued the vehicle. When the car was pulled over, Appellant was
driving and Mr. Ware was not in the car. Appellant claimed that Mr. Ware was at his
attorney’s office; however, he was not there when the officer arrived.3
Appellant claims in her first point that the evidence was insufficient to support the
conviction because the State charged her with tampering with a witness with the purpose
of inducing Mother to withhold evidence or information in the felony prosecution of
Christopher W. Ware; Appellant claims there was no evidence to support the italicized
element of the allegation. In support of that claim, Appellant claims there is nothing in
the record supporting an inference that Appellant acted with the purpose of inducing
Mother to refrain from testifying or to withhold information in the criminal prosecution
of Mr. Ware on the pending nonsupport case. We disagree.
3
Appellant’s defense was that the custody papers were Mother’s idea and discussions had been going on
between Mr. Ware and Mother for two years. Appellant said it was Appellant’s idea to get the paperwork
signed and filed that day. She claimed that the only reason they picked up C.D.C. from school was because
they needed to get her address and social security number to fill in the custody paperwork but she did not
think she told Mother the reason they needed her address. She claimed they took C.D.C. to the attorney’s
office because she thought it was important to hear what C.D.C. wanted in the paperwork. She claimed to
have advised Mother that C.D.C. was back in school when she handed Mother the custody agreement and
said, “here’s the paperwork you asked for. Now get it signed.” The court stated after the trial, “I do not
find the testimony of the defendant all that credible.” “[I]n reviewing a claim challenging the sufficiency
of evidence, we must determine whether the evidence is sufficient to support a conviction by viewing the
evidence and all reasonable inferences therefrom in the light most favorable to the verdict, disregarding all
contradictory evidence and inferences.” State v. Davis, 903 S.W.2d 930, 934 (Mo.App. W.D. 1995). Our
summary of the facts is presented in accordance with that standard.
4
Our review of a challenge to the sufficiency of the evidence is limited to
determining whether sufficient evidence permits a reasonable juror to find guilt beyond a
reasonable doubt. State v. Stevens, 366 S.W.3d 635, 637 (Mo.App. S.D. 2012). We
consider the evidence, together with all reasonable inferences drawn therefrom, in the
light most favorable to the verdict and disregard all inferences to the contrary. Id. We
note that the reliability, credibility, and weight of witness testimony are for the fact-finder
to determine, and it is within the fact-finder’s authority to believe all, some or none of a
witness’s testimony in making its decision. Id. at 638.
Appellant does not appear to be challenging that the taking of the child from
school without Mother’s permission or knowledge was meant as a threat but, rather,
Appellant points to the record of the events on the particular day to support her claim that
the purpose of the action was not to have Mother withhold evidence or information in the
felony prosecution of Mr. Ware. She notes that the papers handed to Mother on that day
were only concerned with future child support and visitation and not the criminal
prosecution. Appellant ignores the history leading up to the events of that day.
Mother had received State benefits for the child and, as a result, then had to
identify Mr. Ware on the birth certificate as the father of C.D.C. and assign her rights to
benefits to the State. It was the Division of Family Services that requested Mother file
for child support. As admitted by Appellant, Mr. Ware, in the months preceding this
event, told Mother that he wanted her to sign child support papers saying that he did not
have to pay her child support so that the State would stop coming after him and he would
not have to go to jail. Mother was a likely witness in the nonsupport case who could
testify as to back support that had not been provided to her by Mr. Ware.
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Appellant relies on the fact that the papers were “only” a parenting plan and that
the court and attorneys present at the trial believed that the parenting plan would not have
been a defense to the criminal nonsupport charges. The reliance is misplaced. The State
was required to prove that Appellant had the purpose of inducing a prospective witness to
withhold evidence and used force, threats, or deception to do so. The court specifically
found that Appellant and Mr. Ware believed that these papers would create a defense to
the criminal charges when they took C.D.C. from school. It is a reasonable inference that
the taking of the child was meant to threaten and intimidate Mother so that she would not
be a witness in the criminal prosecution for nonsupport. That inference is reasonable in
light of the facts that there was no rush for a future custody or visitation schedule as Mr.
Ware had very little contact with the child in the past. Appellant and Mr. Ware took a
ten-year-old child from school saying they needed an address and social security number
for the child. They did not ask the school for either the address or social security number;
instead, they drove by the child’s home with the child.
Additionally, there was testimony at the trial that Mr. Ware and Appellant relayed
in plain language that the child was being taken to be held until Mother signed the papers
presented to her by Appellant. Mother made it clear that she would sign whatever was
put in front of her, that she simply wanted her child returned. At the time that the threats
were made, it is a reasonable inference that Appellant acted with the purpose to impact
the criminal charges against Mr. Ware by inducing Mother to withhold evidence or
information about the support issue. Appellant’s argument simply urges us to accept a
contrary inference, which by our standard of review we are required to disregard. Point I
is denied.
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In her second point, Appellant contends that there was insufficient evidence to
convict her of tampering with a witness in that the State failed to establish proof beyond a
reasonable doubt that any force or threats were to cause Mother to avoid subpoena or
other legal process, or to withhold evidence, information or documents, or to testify
falsely. The basis of Appellant’s argument is that at the close of the evidence, the State
proferred a “jury instruction” for the benefit of the court that the State thought correctly
set out the elements of the offense charged. That instruction stated that the purpose of
Appellant’s actions was to induce Mother to avoid legal process in connection with the
child support action. Appellant then argues that “legal process” has a specific meaning,
the service of process of a writ, summons, subpoena, any warrant besides an arrest
warrant, or other process or court order. Appellant then reasons that there was no
evidence concerning the process of a writ, summons, subpoena, or warrant. Appellant’s
argument is misguided.
This was a court-tried case. The court is presumed to know the law and to apply
it in making its decision. State v. Finley, 403 S.W.3d 625, 629 (Mo.App. S.D. 2012).
The State provided what it deemed to be an aid to the court in making its decision.
Whether that jury instruction was helpful to the court does not concern us. The court
concluded that Appellant’s purpose in her actions was to intimidate Mother into helping
Mr. Ware avoid criminal liability in the case that was pending against him. As discussed
in Point I, there was sufficient evidence to support that finding. Point II has no merit.
The judgment is affirmed.
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Nancy Steffen Rahmeyer, J. - Opinion Author
Gary W. Lynch, J. - Concurs
Don E. Burrell, J. - Concurs
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