In Division
STATE OF MISSOURI, ) ) Respondent, ) No. SD37546 ) v. ) Filed: May 30, 2023 ) BRIAN MATTHEW SMITH, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Jeffrey M. Merrell, Judge
AFFIRMED
Brian Matthew Smith ("Smith") appeals the trial court's judgment convicting him
of one count of first-degree harassment, following a jury trial, and sentencing him to
three years' imprisonment.1 In two points, Smith argues there was insufficient evidence
from which a rational fact-finder could convict him of the offense because there was no
evidence that Smith intended to cause Victim emotional distress by touching her arm
(point 1) and that Victim suffered severe emotional distress (point 2). Finding no merit
in Smith's points, we affirm the trial court's judgment.
1 See § 565.090.All statutory citations are to RSMo 2016 as supplemented through the date of the offense (on or about January 25, 2020), unless otherwise noted. Background2
Victim, a fourteen-year-old girl, and her mother ("Mother") stopped at a
convenience store in Branson to purchase drinks.3 In the store, Smith approached
Victim and asked Victim "if he could buy [them] donuts and alcohol, and [Victim and
Mother] could go back to his hotel room and take [their] shirts off for him." Mother told
Smith to stop several times and that Victim was a minor. Victim was scared that Smith
was going to physically hurt her. Smith then touched Victim on her left arm, moving his
hand from her wrist to her elbow, in a "kind of rub." Victim inched closer to her Mother,
and Mother told Smith to stop touching Victim. Smith "kind of laughed" and rubbed
Victim's arm again. After the second touch, Victim began to tear up. Mother asked
Smith several times to leave them alone but Smith persisted in "making rude comments"
and followed them to the exit of the store. Mother called the police after leaving the
store.
After the incident, Victim had trouble sleeping and became angry and withdrawn.
Victim was scared to go out in public with Mother out of fear that something similar
might happen. Although Victim had suffered from depression and anxiety before the
incident, her doctor had to prescribe medication because her depression and anxiety
worsened.
Smith was charged with first-degree harassment under section 565.090, based on
the grounds that Smith, "without good cause, touched [Victim] on the arm without
consent, with the purpose to cause emotional distress to [Victim], and in doing so,
2 We summarize the evidence in the light most favorable to the verdict. See State v. Stewart, 560 S.W.3d 531, 532 (Mo. banc 2018). Additional evidence is set out in the analysis as necessary. 3 Victim was legally deaf, but could read lips and wore hearing aids.
2 caused [Victim] to suffer emotional distress." A jury found Smith guilty as charged, and
Smith was later sentenced to three years' imprisonment.4 Smith appeals from that
judgment in two points claiming insufficient evidence.
Standard of Review and Applicable Law
"Appellate review of sufficiency of the evidence is limited to whether the State has
introduced adequate evidence from which a reasonable finder of fact could have found
each element of the crime beyond a reasonable doubt." State v. Lammers, 479
S.W.3d 624, 632 (Mo. banc 2016). "All evidence and inferences favorable to the State
are accepted as true, and all evidence and inference[s] to the contrary are rejected."
State v. Porter, 439 S.W.3d 208, 211 (Mo. banc 2014). "Evidence is sufficient to
support a conviction when there is sufficient evidence from which a reasonable [fact-
finder] might have found the defendant guilty beyond a reasonable doubt." State v.
Shaw, 592 S.W.3d 354, 357 (Mo. banc 2019) (quoting State v. Clark, 490 S.W.3d
704, 707 (Mo. banc 2016)).
Section 565.090.1 states, "A person commits the offense of harassment in the
first degree if he or she, without good cause, engages in any act with the purpose to
cause emotional distress to another person, and such act does cause such person to
4 Smith failed to appear for his original sentencing on January 28, 2022, because he was being held in
custody in Indiana for a probation violation. The State asks us to apply the escape rule based on Smith's failure to appear at sentencing. "The escape rule operates to deny the right of appeal to a defendant who escapes justice." State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). Application of the rule is based on the fundamental principle that "[t]hose who seek the protection of this legal system must . . . be willing to abide by its rules and decisions." State v. Wright, 763 S.W.2d 167, 168-69 (Mo. App. W.D. 1988). The decision to apply the escape rule rests within the sound discretion of this Court. State v. Freeman, 619 S.W.3d 550, 663 (Mo. App. S.D. 2021). Because Smith was in custody prior to his sentencing hearing, and, thus, had not escaped justice at the time of his hearing, we decline to apply the escape rule.
3 suffer emotional distress." Therefore, to convict a defendant of the offense, the State is
required to prove four elements: (1) the defendant engaged in an act, (2) without good
cause, (3) with the purpose to cause emotional distress to another person, and (4) that
act caused the person to suffer emotional distress. Id. The State must prove each
element beyond a reasonable doubt. State v. Holmes, 626 S.W.3d 339, 342 (Mo. App.
E.D. 2021). Smith does not contest the sufficiency of the evidence of the first two
elements but challenges the sufficiency of the evidence of the last two elements.
Point 1: Acted with Purpose to Cause Emotional Distress
In point 1, Smith claims the evidence was insufficient to establish Smith rubbed
Victim's arm with the purpose of causing Victim emotional distress. "A person 'acts
purposely', or with purpose, with respect to his or her conduct or to a result thereof
when it is his or her conscious object to engage in that conduct or to cause that result."
§ 562.016.2. Intent is rarely susceptible to direct proof and is usually inferred through
circumstantial evidence. State v. Perkins, 640 S.W.3d 498, 502 (Mo. App. S.D.
2022). "If a jury is convinced beyond a reasonable doubt, so long as the evidence meets
the minimal appellate standard required by due process, we need not disturb the result
simply because the case depended wholly, mostly, or partially upon circumstantial
proof." State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993).
Smith argues there was "no evidence" that he intended to cause Victim emotional
distress, and that, at most, the evidence demonstrated "an attempt to proposition
[Victim] and [Mother] for sexual relations." The flaw in Smith's argument is that it
focuses only on Smith's act of rubbing Victim's arm and ignores the circumstantial
evidence that provided context for why Smith committed the act. In support of his
argument, Smith likens his case to R.M. v. Juvenile Officer, 625 S.W.3d 779 (Mo. 4 App. W.D. 2021). In R.M., the Western District of our Court reversed a juvenile
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In Division
STATE OF MISSOURI, ) ) Respondent, ) No. SD37546 ) v. ) Filed: May 30, 2023 ) BRIAN MATTHEW SMITH, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Jeffrey M. Merrell, Judge
AFFIRMED
Brian Matthew Smith ("Smith") appeals the trial court's judgment convicting him
of one count of first-degree harassment, following a jury trial, and sentencing him to
three years' imprisonment.1 In two points, Smith argues there was insufficient evidence
from which a rational fact-finder could convict him of the offense because there was no
evidence that Smith intended to cause Victim emotional distress by touching her arm
(point 1) and that Victim suffered severe emotional distress (point 2). Finding no merit
in Smith's points, we affirm the trial court's judgment.
1 See § 565.090.All statutory citations are to RSMo 2016 as supplemented through the date of the offense (on or about January 25, 2020), unless otherwise noted. Background2
Victim, a fourteen-year-old girl, and her mother ("Mother") stopped at a
convenience store in Branson to purchase drinks.3 In the store, Smith approached
Victim and asked Victim "if he could buy [them] donuts and alcohol, and [Victim and
Mother] could go back to his hotel room and take [their] shirts off for him." Mother told
Smith to stop several times and that Victim was a minor. Victim was scared that Smith
was going to physically hurt her. Smith then touched Victim on her left arm, moving his
hand from her wrist to her elbow, in a "kind of rub." Victim inched closer to her Mother,
and Mother told Smith to stop touching Victim. Smith "kind of laughed" and rubbed
Victim's arm again. After the second touch, Victim began to tear up. Mother asked
Smith several times to leave them alone but Smith persisted in "making rude comments"
and followed them to the exit of the store. Mother called the police after leaving the
store.
After the incident, Victim had trouble sleeping and became angry and withdrawn.
Victim was scared to go out in public with Mother out of fear that something similar
might happen. Although Victim had suffered from depression and anxiety before the
incident, her doctor had to prescribe medication because her depression and anxiety
worsened.
Smith was charged with first-degree harassment under section 565.090, based on
the grounds that Smith, "without good cause, touched [Victim] on the arm without
consent, with the purpose to cause emotional distress to [Victim], and in doing so,
2 We summarize the evidence in the light most favorable to the verdict. See State v. Stewart, 560 S.W.3d 531, 532 (Mo. banc 2018). Additional evidence is set out in the analysis as necessary. 3 Victim was legally deaf, but could read lips and wore hearing aids.
2 caused [Victim] to suffer emotional distress." A jury found Smith guilty as charged, and
Smith was later sentenced to three years' imprisonment.4 Smith appeals from that
judgment in two points claiming insufficient evidence.
Standard of Review and Applicable Law
"Appellate review of sufficiency of the evidence is limited to whether the State has
introduced adequate evidence from which a reasonable finder of fact could have found
each element of the crime beyond a reasonable doubt." State v. Lammers, 479
S.W.3d 624, 632 (Mo. banc 2016). "All evidence and inferences favorable to the State
are accepted as true, and all evidence and inference[s] to the contrary are rejected."
State v. Porter, 439 S.W.3d 208, 211 (Mo. banc 2014). "Evidence is sufficient to
support a conviction when there is sufficient evidence from which a reasonable [fact-
finder] might have found the defendant guilty beyond a reasonable doubt." State v.
Shaw, 592 S.W.3d 354, 357 (Mo. banc 2019) (quoting State v. Clark, 490 S.W.3d
704, 707 (Mo. banc 2016)).
Section 565.090.1 states, "A person commits the offense of harassment in the
first degree if he or she, without good cause, engages in any act with the purpose to
cause emotional distress to another person, and such act does cause such person to
4 Smith failed to appear for his original sentencing on January 28, 2022, because he was being held in
custody in Indiana for a probation violation. The State asks us to apply the escape rule based on Smith's failure to appear at sentencing. "The escape rule operates to deny the right of appeal to a defendant who escapes justice." State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). Application of the rule is based on the fundamental principle that "[t]hose who seek the protection of this legal system must . . . be willing to abide by its rules and decisions." State v. Wright, 763 S.W.2d 167, 168-69 (Mo. App. W.D. 1988). The decision to apply the escape rule rests within the sound discretion of this Court. State v. Freeman, 619 S.W.3d 550, 663 (Mo. App. S.D. 2021). Because Smith was in custody prior to his sentencing hearing, and, thus, had not escaped justice at the time of his hearing, we decline to apply the escape rule.
3 suffer emotional distress." Therefore, to convict a defendant of the offense, the State is
required to prove four elements: (1) the defendant engaged in an act, (2) without good
cause, (3) with the purpose to cause emotional distress to another person, and (4) that
act caused the person to suffer emotional distress. Id. The State must prove each
element beyond a reasonable doubt. State v. Holmes, 626 S.W.3d 339, 342 (Mo. App.
E.D. 2021). Smith does not contest the sufficiency of the evidence of the first two
elements but challenges the sufficiency of the evidence of the last two elements.
Point 1: Acted with Purpose to Cause Emotional Distress
In point 1, Smith claims the evidence was insufficient to establish Smith rubbed
Victim's arm with the purpose of causing Victim emotional distress. "A person 'acts
purposely', or with purpose, with respect to his or her conduct or to a result thereof
when it is his or her conscious object to engage in that conduct or to cause that result."
§ 562.016.2. Intent is rarely susceptible to direct proof and is usually inferred through
circumstantial evidence. State v. Perkins, 640 S.W.3d 498, 502 (Mo. App. S.D.
2022). "If a jury is convinced beyond a reasonable doubt, so long as the evidence meets
the minimal appellate standard required by due process, we need not disturb the result
simply because the case depended wholly, mostly, or partially upon circumstantial
proof." State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993).
Smith argues there was "no evidence" that he intended to cause Victim emotional
distress, and that, at most, the evidence demonstrated "an attempt to proposition
[Victim] and [Mother] for sexual relations." The flaw in Smith's argument is that it
focuses only on Smith's act of rubbing Victim's arm and ignores the circumstantial
evidence that provided context for why Smith committed the act. In support of his
argument, Smith likens his case to R.M. v. Juvenile Officer, 625 S.W.3d 779 (Mo. 4 App. W.D. 2021). In R.M., the Western District of our Court reversed a juvenile
defendant's conviction for second degree harassment based on insufficient evidence that
the juvenile made a sexually explicit comment to an officer for the purpose of causing
emotional distress.5 Id. at 783. In so finding, the Court reasoned:
The circumstances here involve a sexually explicit comment made to a detention aide by a fifteen-year-old juvenile confined in a juvenile detention facility. The comment was made after the juvenile refused to comply with orders and was being physically removed from a staircase and made along with a number of other comments showing the teenager's disrespect for the aide. R.M., a troubled adolescent, was "acting out" in a way that communicated his disrespect for the aide but did not demonstrate the purpose to cause emotional distress to her.
Id.
The circumstances in Smith's case, in contrast, involve more than a sexually
explicit comment made by a minor to an adult. The circumstances here involve a
fourteen-year-old girl being followed and approached by an adult male stranger, Smith,
who asks if she'd like to go back to his place and take her shirt off. Mother ordered
Smith to stop, and he rubbed Victim's arm. Victim was scared, and moved closer to
Mother. Mother told Smith to stop touching Victim and he "kind of laughed" and
rubbed Victim's arm again, causing Victim to tear up. Smith continued to make rude
comments as Victim and Mother left the store. Viewing the evidence and all reasonable
inferences therefrom in the light most favorable to the verdict, and disregarding any
evidence and inferences to the contrary, there was sufficient evidence from which the
5 The only difference between first-degree and second-degree harassment is that second-degree
harassment does not require the State to prove the victim actually suffered emotional distress. Compare § 565.090 with 565.091. The comment made by the juvenile in R.M. was "I wanna fuck you in your big booty, bitch." 625 S.W.3d at 781. The juvenile's remark came after the officer asked the juvenile several times to get down from the stairs, where he was dangling his legs. Id. at 780 5 jury could have found that Smith rubbed Victim's arm with the purpose of causing
emotional distress. Point 1 is denied.
Point 2: Victim Suffered Emotional Distress
In point 2, Smith argues the State failed to present sufficient evidence that Victim
actually suffered emotional distress. "Emotional distress" means "something markedly
greater than the level of uneasiness, nervousness, unhappiness, or the like which are
commonly experienced in day-to-day living[.]" § 565.002(7). That emotional distress
must be "considerable or substantial to a reasonable person."6 R.M., 625 S.W.3d at
783.
In support of this argument, Smith directs us to Nenninger v. Smith, 400
S.W.3d 400 (Mo. App. W.D. 2013), a case where the Western District determined that a
mother, who was seeking a protective order against the father, failed to prove that father
caused her substantial emotional distress. In that case, all the mother testified to was
that she felt "fearful of and threatened by [the father]" and believed she was suffering
from a mild form of post-traumatic stress disorder. Id. at 405. The Western District
determined this evidence was insufficient, as "[a] small degree of anxiety does not rise to
the level of substantial emotional distress." Id.
Unlike Nenninger, the evidence in this case demonstrated more than just "a
small degree of anxiety." Here, the State presented sufficient evidence that Victim
suffered emotional distress markedly greater than commonly experienced in day-to-day
living. Victim was scared when Smith made rude sexual comments, rubbed her arm,
6 While section 565.090 does not specify that the emotional distress be "substantial," the Supreme Court
of Missouri has held that the resulting effects of acts that cause emotional distress must be "substantial" to prevent the statute from being unconstitutionally overbroad. State v. Vaughn, 366 S.W.3d 513, 521 (Mo. banc 2012) (analyzing prior version of section 565.090). 6 and she thought he might physically hurt her. She was also scared when Smith ignored
Mother's demand to stop touching her and rubbed her arm a second time. After the
second touch, Victim teared up. After leaving the store, Mother could see Victim was
scared. Victim was starting to cry and was squeezing Mother's hand hard. Victim was
crying and emotional when recounting the story to a responding police officer. Victim
was scared and nervous that something like what happened in the store would happen
again.
Victim cried the entire drive home. She also cried when telling her father what
happened. Victim's sleep suffered, and she would wake her parents up if she heard
anything outside her bedroom window. Victim became withdrawn and angry after the
incident and began taking medication for anxiety and depression. Before the incident,
Victim had been a "bubbly happy girl[,]" but afterwards, she could no longer be in public
if a man looked in her direction. Victim was scared to go out in public with Mother or to
go to stores alone because someone might touch her. Victim also did not want to stay
home alone. Viewing the evidence and all reasonable inferences therefrom in the light
most favorable to the verdict, and disregarding any evidence and inferences to the
contrary, there was sufficient evidence from which the jury could have found that Smith
caused Victim to suffer substantial emotional distress. Point 2 is denied.
Conclusion
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, J. – OPINION AUTHOR
JEFFREY W. BATES, J. - CONCURS
DON E. BURRELL, J. – CONCURS 7