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.


                                                      1
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




                                               3
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.




                                              5
       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.




                                              6
       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.




                                              7
Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, J. - Concurs

Don E. Burrell, J. - Concurs




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