             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
STATE OF MISSOURI,                                       )
                                                         )
                    Respondent,                          )
                                                         )
v.                                                       )        WD82597
                                                         )
JOSEPH MICHAEL WILSON,                                   )        Opinion filed: June 23, 2020
                                                         )
                    Appellant.                           )

      APPEAL FROM THE CIRCUIT COURT OF CALLAWAY COUNTY, MISSOURI
               THE HONORABLE J. HASBROUCK JACOBS, JUDGE

                         Division Three: Anthony Rex Gabbert, Presiding Judge,
                       Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

           Joseph Wilson (“Wilson”) appeals his convictions for attempted robbery, domestic assault,

property damage, and false imprisonment entered by the Circuit Court of Callaway County

following a jury trial. We affirm Wilson’s convictions but remand to the trial court for the limited

purpose of correcting the written judgment to accurately reflect the jury’s verdicts as to Counts I,

II, IV, and XIV.

                                      Factual and Procedural Background

           Wilson and J.W.1 began dating in 2010 and married in 2012. They lived with their three

children in Fulton. Wilson and J.W. had problems throughout their marriage. By November 2016,


1
    We use initials to identify the victim to protect her identity pursuant to section 595.226.1, RSMo.

Statutory references are to the Missouri Revised Statutes 2010, updated through the 2015 supplement.
J.W. and Wilson had separated, but J.W. stayed with Wilson on occasion. On November 18, 2016,

J.W. stayed the night with Wilson. The following morning, Wilson demanded J.W. give him her

cell phone and leave. J.W. complied and left for work. After work, she returned to retrieve some

personal items. Wilson met her by the door and asked why she was there. The two argued, and

Wilson demanded J.W. give him her purse. J.W. refused, and Wilson grabbed the purse. J.W. did

not let go, and she fell to the ground. Wilson dragged J.W. from the driveway to the house before

eventually releasing the purse. J.W. suffered a bruise on her hand and scratch on her leg during

this incident.

           J.W. ran from the home, obtained a ride to Walmart to buy a new cell phone, and was then

taken to her parents’ residence. Wilson sent J.W. a text indicating that he would bring her personal

items to her. However, upon arriving at the parents’ home, Wilson threw J.W.’s clothes and other

items into the street and then drove over them with his vehicle.

           The next day, J.W. reported the previous day’s incident to police. J.W. additionally

disclosed other past incidents of abuse by Wilson.

           J.W. discussed an argument that occurred on approximately October 8, 2016. During this

altercation, Wilson would not allow J.W. to leave with her cell phone. A struggle ensued that

resulted in J.W.’s neck being burned by her cigarette. The following day, arguments between

Wilson and J.W. continued, and Wilson punched J.W. in the face. J.W. convinced Wilson to allow

her to leave for an hour, and, during this period, she went to the home of a friend and the friend

took photographs of J.W.’s bruises.

           J.W. also told the officer about multiple assaults that had occurred between February and

April 2016.2 On one occasion, J.W. and Wilson had planned to take their children to the circus,



2
    J.W. could not remember specific dates for the events that occurred during this time period.

                                                            2
but Wilson fell asleep. When he awoke, Wilson was angry that J.W. did not take the children by

herself, and he punched her in the cheek with a closed fist. On another occasion, Wilson was mad

at J.W. for talking to police, so he choked her with his hands. Another time, after becoming angry

with Wilson following a yard sale, Wilson attempted to punch J.W. in the face, but she moved and

Wilson’s fist hit her arm. Yet another time, J.W. asked to leave the house, and Wilson grabbed her

by her hair and pulled her to the ground. On a different occasion, J.W. found Wilson and another

woman in bed, and Wilson kicked J.W. in the stomach and called her a “c*ck block.” As part of a

final incident during this period, Wilson punched J.W. in the chin while they were in their kitchen.

        J.W. additionally disclosed an event that occurred the day before Thanksgiving in 2015,

when Wilson picked up a Coke can and smashed it in J.W. face. The impact knocked J.W.

unconscious, caused her to see spots, and left a bruise on her temple and eye.

        Finally, J.W. discussed the initial incidents of violence perpetrated by Wilson against her.

She told of a time in January 2015, when she and Wilson were “play wrestling” and Wilson twisted

her arm behind her back. J.W. went to the hospital and had to wear a sling for two weeks. J.W.

also recalled, around that same time, that Wilson had put his forearm against her neck and the wall

and pushed up, choking her.

        J.W. explained that she did not go to the police about the abuse earlier because she was

afraid of Wilson. J.W. also stated that Wilson had consistently told her that if she did not like what

he was doing, she could leave. J.W. said she stayed because she loved Wilson, but she finally

reported the abuse because she could no longer conceal it after the incident in front of her parents’

home.

        Wilson was arrested and charged, as a prior and persistent offender, with one count of

robbery in the second degree (Count I); one count of property damage in the second degree (Count



                                                  3
III); one count of felonious restraint (Count IV); and twelve counts of domestic assault in the

second degree (Counts II and V through XV).

           At trial, J.W., the investigating officer, J.W.’s friend, and Wilson testified. A Facebook

post, including comments on the post by Wilson and others, and letters wherein Wilson admitted

to assaulting J.W. were admitted into evidence. Wilson denied ever assaulting J.W. or authoring

the Facebook post or letters. The jury found Wilson guilty of attempted robbery in the second

degree (Count I); two counts of domestic assault in the third degree (Counts II and XIV); property

damage in the second degree (Count III); false imprisonment (Count IV); and eleven counts of

domestic assault in the second degree (Counts V, VI, VII, VIII, IX, X, XI, XII, XIII, and XV). 3

Wilson was sentenced to fifteen years in the department of corrections for Counts I, VII, VIII, IX,

X, XI, XII, and XV; ten years in the department of corrections for Count XIII; and 180 days in the

Callaway County jail for Counts II, III, IV, V, and XIV, with all counts running concurrently

except the sentence for Count XIII, which was ordered to run consecutive to the other sentences.

Wilson appeals his convictions. Additional facts are provided throughout this opinion.

                                                      Discussion

           Wilson raises two points on appeal. In his first point, Wilson alleges that the trial court

abused its discretion in admitting the Facebook post and related comments because the State failed

to lay a proper foundation. In his second point, Wilson asserts that the trial court erred in entering

the judgment of conviction noting that four of the convictions in the written judgment differed

from the jury’s verdicts. We affirm Wilson’s convictions but remand to the trial court for the

limited purpose of correcting the written judgment to accurately reflect the jury’s verdicts as to

Counts I, II, IV, and XIV.



3
    The jury acquitted Wilson of Count VI, domestic assault in the second degree relating to the cigarette burn.

                                                            4
                            Point I – Foundation of the Facebook Post

         In Point I, Wilson alleges that the trial court erred in admitting screen shots of a Facebook

post and associated comments purportedly written by Wilson, arguing that the State failed to lay a

sufficient foundation to establish their authenticity and genuineness.

         During J.W.’s testimony, the State moved for the admission of three photographs. These

photographs consisted of screen shots of a post, and comments to the post, made to Wilson’s

Facebook account. J.W. explained that she was Facebook friends with Wilson and saw the post

immediately after he posted it. She stated that she did not have the ability to log into Wilson’s

Facebook account, but she knew it was his because the profile photograph was Wilson with the

couple’s three children, and J.W. “talked regularly” with Wilson on Facebook Messenger. J.W.

stated that as soon as she saw the post, she called her sister and a friend who captured the screen

shots.

         The Facebook post stated, “F*ck b*tches. Unloyal ass hoes all about themselves. Actin like

victims. F*ck outta here c*nt.” J.W. explained that several comments on the post were made by

mutual friends and J.W. and Wilson’s landlord. The comments included, “Ummmmm. You and

[J.W.] having a bad day?” and, “Well damn Joseph I tease Nichole allot but that’s just harsh!”

Wilson then responded, “Naw bro. . . . this aint harsh. My bottle full. Im done protecting peoples

image. Truth will come out. Only thing I done wrong was punch peeps in the face. And that makes

me a monster. F*ck that. Tired of this bullsh*t.” One of the commenters followed up, writing, “I

thought this sh*t was about your old lady I was like f******ck.” Wilson added, “Lol it is. She

scared of me cuz she gets punched in face for her behavior. Already told her she can hit the door

if she is unhappy. But she stays and continue disrespecting and exspects me to take it like im a

b*tch. And as the world knows. . . I aint no b*tch.”



                                                  5
       Wilson’s objection to the admission of the screen shots was overruled by the trial court.

                                       Standard of Review

       “The standard of review for the admission of evidence is abuse of discretion.” State v.

Primm, 347 S.W.3d 66, 70 (Mo. banc 2011) (citing State v. Reed, 282 S.W.3d 835, 837 (Mo. banc

2009)). “‘This standard gives the trial court broad leeway in choosing to admit evidence; therefore,

an exercise of this discretion will not be disturbed unless it is clearly against the logic of the

circumstances.’” Id. (quoting Reed, 282 S.W.3d at 837). Our review is for prejudice, not error

alone; and we “will reverse only if the error was so prejudicial it deprived the defendant of a fair

trial.” State v. Hein, 553 S.W.3d 893, 896 (Mo. App. E.D. 2018) (citing State v. Naylor, 510

S.W.3d 855, 862 (Mo. banc 2017)). “An error is prejudicial only if there is a reasonable probability

that but for the court’s error the outcome of the trial would have been different.” State v. Harris,

358 S.W.3d 172, 174 (Mo. App. E.D. 2011) (citing State v. McKinney, 336 S.W.3d 499, 500 (Mo.

App. E.D. 2011)).

                                             Analysis

       The same foundational requirements germane to the admission of writings apply to online

messages. See State v. Snow, 437 S.W.3d 396, 402 n.4 (Mo. App. S.D. 2014) (“we believe the

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

in general.”); cf. State v. Harris, 358 S.W.3d 172, 175 (Mo. App. E.D. 2011) (“the content of text

messages on a phone is more properly analogous to a personal letter and those rules of admissibility

should be applied.”). In order for a writing or document to be admitted into evidence, “‘the

proponent must lay the foundation for the document, including authenticity.’” Hein, 553 S.W.3d

at 897 (quoting State v. Hosier, 454 S.W.3d 883, 899 (Mo. banc 2015)). “‘The authenticity of a

document cannot be assumed, but what it purports to be must be established by proof.’” Id.



                                                 6
(quoting State v. Swigert, 852 S.W.2d 158, 163 (Mo. App. W.D. 1993)). “Even if a document

purports to have been written and signed by the person to whom it is attributed, that fact, standing

alone, is insufficient to establish its authenticity and genuineness.” State v. Cravens, 132 S.W.3d

919, 930 (Mo. App. S.D. 2004) (citation omitted). “Documents can be authenticated by

circumstantial evidence.” Hein, 553 S.W.3d at 897 (citing Hosier, 454 S.W.3d at 899).

       Snow is the only Missouri case to address the foundational requirements pertinent to the

admission of social media posts or messages. In that case, like here, the defendant complained that

messages found on his social media page had not been adequately authenticated, arguing that the

State failed to show that he “sent the message, or that he alone had access to his [Myspace]

account.” 437 S.W.3d at 402. The Court recounted the evidence supporting authenticity, including

the following:

       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 messages 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.

Id. at 403. The Court found that this constituted a sufficient foundation for the admission of the

Myspace messages. Id.

       The evidence in the instant case compels a similar conclusion. J.W. testified that she

recognized the Facebook page as being Wilson’s based on the name and profile picture, which was

                                                 7
a photograph of Wilson and the couple’s three children. J.W. explained that she could not log on

to Wilson’s Facebook account, but was able to see it because they were friends on the platform.

J.W. also stated that she “talked regularly” with Wilson on Facebook Messenger, the platform’s

mobile messaging program. J.W. noted that she saw the Facebook post “immediately after he

posted it[,]” and that she was surprised that Wilson had posted publicly about the assault. J.W.

further explained that the post and comments from Wilson used slurs4 and contained grammatical

errors5 similar to those found in the letters Wilson had sent to J.W. Moreover, in response to

comments to his post, Wilson clarified that he was referring to his “old lady” who he stated could

“hit the door if she is unhappy[,]” – a specific theme that Wilson had used in previous

communications to J.W. This evidence was sufficient to establish the authenticity and genuineness

of the posts to Wilson’s Facebook page captured by the screenshots contained in exhibits 8, 9, and

10, and the trial court’s decision to admit those exhibits was not an abuse of discretion.

           Further, even if we were to find the trial court had abused its discretion, which we do not,

Wilson has failed to prove that he was sufficiently prejudiced by the admission of these exhibits

to require reversal. Hein, 553 S.W.3d at 898 (citing Naylor, 510 S.W.3d at 862) (stating that an

appellant “must show prejudice, however, to obtain appellate reversal”). As stated above, we “will

reverse only if the error was so prejudicial it deprived the defendant of a fair trial.” Id. at 896

(citing Naylor, 510 S.W.3d at 862). When reviewing for prejudice, “the issue is whether the

evidence was ‘outcome determinative,’ that is, whether ‘the erroneously admitted evidence so

influenced the jury that, when considered with and balanced against all the evidence properly

admitted, there is a reasonable probability that the jury would have reached a different conclusion



4
    Wilson referred to himself and J.W. as “b*ches,” and he referred to J.W. as a “c*nt.”
5
    Grammatical errors included using “cuz” instead of “because,” and omitting the apostrophe in “I’m.”

                                                            8
but for the erroneously admitted evidence.’” State v. Driscoll, 55 S.W.3d 350, 356 (Mo. banc 2001)

(quoting State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000)).

       Here, we would not find that the admission of the Facebook post was outcome

determinative. In addition to the Facebook post in which Wilson admitted to punching J.W., letters

written by Wilson were admitted into evidence and read aloud to the jury, in which Wilson

admitted to assaulting J.W.:

       . . . But I cannot be doin that to my kids! That’s abuse! to a T! And I won’t leave
       our how you go through the same sh*t the kids do but sometimes I don’t stop. I
       followed through! at first it was me being satisfied with yelling, then a shove felt
       ok, then knocking you down, then choking, or all the above if I wanted to mix sh*t
       up! then I was never satisfied. . . . I began punching you! Hitting you with a Coke
       can! Chasing you!

Wilson does not complain about the letters or related testimony in this appeal. “‘Generally,

prejudice does not exist when the objectionable evidence is merely cumulative of other evidence

that was admitted without objection and that sufficiently establishes essentially the same facts.’”

State v. Elliott. 271 S.W.3d 604, 607 (Mo. App. S.D. 2007) (quoting State v. Smith, 185 S.W.3d

747, 757 (Mo. App. S.D. 2006)).

       We find that the trial court did not err in admitting the exhibits containing the screen shots

from Wilson’s Facebook post and, further, that Wilson has failed to prove he was prejudiced by

the admission of those exhibits.

       Point I denied.

                               Point II – Erroneous Written Judgment

       In his second point, Wilson asserts that the trial court erred in entering its written judgment,

arguing that the following four convictions listed on the written judgment were erroneous: Count

I, robbery in the second degree; Count II, domestic assault in the second degree; Count IV,

felonious restraint; and Count XIV, domestic assault in the second degree. Wilson argues that the

                                                  9
correct convictions as found by the jury and pronounced orally by the trial court are instead: Count

I, attempted robbery in the second degree; Count II, domestic assault in the third degree; Count

IV, false imprisonment; and Count XIV, domestic assault in the third degree. The State concedes

that the trial court’s written judgment is erroneous, and we agree.

         “Clerical errors in the sentence and judgment in a criminal case may be corrected by an

order nunc pro tunc if the written judgment does not reflect what actually was done.” State v.

Lemasters, 456 S.W.3d 416, 426 (Mo. banc 2015) (citing Soehlke v. Soehlke, 398 S.W.3d 10, 22

(Mo. banc 2013)). “In a criminal case, Rule 29.12(c) allows the court to ‘amend its records

according to the truth, so that they should accurately express the history of the proceedings which

actually occurred prior to the appeal.’” Id. (quoting McGuire v. Kenoma, LLC, 447 S.W.3d 659,

663 (Mo. banc 2014)).

       Here, the written judgment does not accurately reflect what occurred at Wilson’s trial and

sentencing. The jury’s verdicts and the trial court’s oral pronouncement during both the trial and

at sentencing clearly indicate that Wilson was convicted in Count I of attempted robbery in the

second degree; in Count II of domestic assault in the third degree; in Count IV, false imprisonment;

and in Count XIV, domestic assault in the third degree. The remainder of Wilson’s convictions are

correctly identified and the punishments set forth in the written judgment for all counts accurately

track the trial court’s oral pronouncement. Therefore, “this is a proper circumstance—indeed, the

prototypical circumstance—for an order nunc pro tunc correcting the written judgment to reflect

what actually occurred.” Lemaster, 456 S.W.3d at 426.

       Point II granted.




                                                10
                                             Conclusion

       Wilson’s convictions are affirmed. We, however, issue a limited remand with directions to

the trial court to enter a nunc pro tunc order correcting the written judgment as to Counts I, II, IV,

and XIV to conform to the jury’s verdicts.



                                               __________________________________________
                                               EDWARD R. ARDINI, JR., JUDGE

All concur.




                                                 11
