Friday, June 13, 2014

Shared Custody, Text Messages and Harassment

This post examines an opinion the Tennessee Court of Criminal Appeals recently issued in a case involving, essentially, domestic relations:  State v. Wiss, 2014 WL 1259178 (2014).  This is how the Court of Criminal Appeals describes the appeal before it:
In 2011, the Maury County Grand Jury indicted . . . Michael Wiss for harassment by the electronic phone communication of text messaging. A jury convicted [him] of harassment. He was then sentenced to eleven months and twenty-nine days and ordered to pay a $2500 fine. On appeal, [Wiss] argues that the evidence presented by the State at trial was insufficient to support his conviction. 
State v. Wiss, supra.  We will come back to the charges against Wiss later.
And this, according to the appellate court, is how the prosecution arose:
In late June 2011, Cassie Gidcomb received a number of text messages and phone calls from [Wiss]. Gidcomb and [Wiss] had been romantically involved intermittently from 2007 to 2011, but they had parted ways prior to the incidents at hand. The relationship was strained because Gidcomb and [Wiss] shared custody of their then six-year-old daughter, S.W.

In June, Gidcomb, accompanied by her brother-in-law, Joshua Fullagar, and his sister, took a trip to New York to visit Mr. Fullagar's family. Gidcomb elected not to take her daughter with her on the trip and agreed beforehand to allow [Wiss] to visit their daughter even though it was not his scheduled weekend for visitation. However, [Wiss] did not pick up their daughter before Gidcomb left for her trip, so she asked her mother, Bee Gidcomb, to care for S.W. instead.

The following day, after Gidcomb had already left on her trip, [Wiss] called [her] and inquired about his scheduled visitation with their daughter. Gidcomb revealed that she left S.W. with her mother because [Wiss] did not call or show up to retrieve his daughter.

Throughout her visit to New York and while she was returning home, Gidcomb received repeated text messages and phone calls from [Wiss] because he was unhappy about [her] decision to leave their daughter with her mother instead of him. Because Gidcomb refused to answer the text messages and phone calls, they began to accumulate rapidly.

The majority of the text messages and phone calls were received between 12:00 a.m. and 3:00 a.m. on the evening of June 25, 2011, while Gidcomb and her companions were in New York. The content of the messages consisted of [Wiss] threatening [her] mother's life and even implying that she had already been killed; that [Wiss] or others were outside of Gidcomb's home, where [she] resided with her mother, her daughter, and her son; and that [Wiss] hoped Gidcomb's son was not in her home because [he] did not want the son to be hurt mistakenly.
State v. Wiss, supra. 
The Court of Criminal Appeals gives an example of the content of the messages:
One message stated, `Feeling good to do it, so stop ignoring me or no one is going to be able to identify what's left of you. Think I'm playing? If I don't have [our daughter] by 12:00, I'm gonna.’ Another message singled out Gidcomb's mother, `Why do you keep hanging up? You playing. I'm about to put you momma under for good. I don't care.’

[Wiss] continued his intimidation by targeting Gidcomb's son with the following message, `Is [her] son there? This is very important. . . . He doesn't need to get hurt. I need to know to let them know I'm about to go have some drinks. I need want [sic] the kids to get hurt.’

Finally, [Wiss] tried to convince Gidcomb that her mother had been killed when he sent, `Your road is blocked off and if they miss the hit they will be back, but I've been assured she is gone and your only concern is S.W.’ [He] followed minutes later with `Okay [Gidcomb]. I'm sorry. I'm going to pray for your family. We are all sorry for your loss. Guess you will get the call in the morning. Faith is the tool of God. I'm sorry this happened.’
State v. Wiss, supra. 
The court also notes that both Gidcomb and Fullagar
recounted . . . that she was worried for her family's safety while receiving the messages and spent the majority of the night in tears. Fullagar confirmed that [she] was distressed. Gidcomb preserved as many messages as she could for evidence. Fullagar also recollected the threatening content of the phone calls. Additionally, he identified [Wiss] as the speaker when Gidcomb put the calls on speakerphone.

[Wiss] finally ceased messaging a little past 3:00 a.m., but commenced again the next afternoon by sending, `You get back, you think getting raped fucked your head up. You ain't seen shit. And tell that digger [sic] wannabe I got a chopper with a fifty round clip to shut that ass up.’ During this time, Gidcomb had great difficulty reaching her family due to the rural location of their home.
State v. Wiss, supra. 
Finally, the Court of Criminal Appeals also explains that
[d]ue to the number of messages received, Gidcomb had to store messages in Fullagar's email account so she could receive incoming messages from [Wiss]. Gidcomb testified that she received approximately fifty to one hundred threatening messages throughout the duration of her trip to New York.

The correspondence was so troubling that Gidcomb, Fullagar, and his sister decided to shorten their trip and return to Tennessee. Upon returning home, Gidcomb, Fullagar, and [his] sister drove immediately to Gidcomb's home.

After arriving and verifying that her family was safe, Gidcomb filed a report with the sheriff's office and then went to speak with the Magistrate. [She] continued to receive telephone calls and text messages from [Wiss] during this time.

The following day, Ms. Tiara Baxter, a close friend of Gidcomb, testified that she saw Gidcomb ignore many phone calls and receive threatening text messages from [Wiss’] phone number. [His] communications continued. In the weeks leading up to trial, on more than one occasion, [Wiss’] mother called Gidcomb without notifying her that [he] was also on the call as they attempted to convince [her] to `drop’ the charges.
State v. Wiss, supra. 
The next thing that happened was that on November 10, 2011, an indictment was
returned charging [Wiss] with unlawfully and intentionally communicating in violation of Tennessee Code Annotated § 39–17–308 for the incidents on or about June 25, 2011 through July 1, 2011.

On June 14, 2012, a jury returned a verdict finding [him] guilty of harassment, a Class A misdemeanor, pursuant to Tennessee Code Annotated § 39–17–308. The judge sentenced [Wiss] to eleven months and twenty-nine days and ordered a $2,500 fine.
State v. Wiss, supra. 
Tennessee Code Annotated § 39–17–308 says someone commits harassment who, among other things, intentionally
(1) Threatens, by telephone, in writing or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, electronic mail or Internet services, to take action known to be unlawful against any person and by this action knowingly annoys or alarms the recipient;

(2) Places one (1) or more telephone calls anonymously, or at an hour or hours known to be inconvenient to the victim, or in an offensively repetitious manner, or without a legitimate purpose of communication, and by this action knowingly annoys or alarms the recipient;

(3) Communicates by telephone to another that a relative or other person has been injured, killed or is ill when the communication is known to be false. . . .
On appeal, Wiss argued, as noted above, that the evidence presented at his trial was not sufficient to support his conviction”. State v. Wiss, supra.  More precisely, claimed “the State failed to prove every element of the crime for which he was convicted.”  State v. Wiss, supra. 
The Court of Criminal Appeals began its analysis of his argument by noting that when the
defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and `approved by the trial judge, accredits the testimony of the’ State's witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253 (Tennessee Supreme Court 1994). . . .

Thus, although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this presumption `and replaces it with one of guilt.’ State v. Tuggle, 639 S.W.2d 913 (Tennessee Supreme Court1982).

Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. State v. Tuggle, supra. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubtSee Tennessee Rules of AppellateProcedure Rule 13(e). . . .  

In making this decision, we are to accord the State `the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.’ See State v. Tuggle, supra.
State v. Wiss, supra. 
The court began its analysis of Wiss’ argument by noting that he was convicted of harassment which was defined as (i) threatening “by telephone, in writing or by electronic communication, including . . . text messaging, . . .  electronic mail or Internet services, to take action known to be unlawful against any person and by this action knowingly alarms the recipient” and/or (ii) communicating with a person in a manner the defendant knows, or should know, is “without legitimate purpose” and with the “malicious intent” to frighten, intimidate or cause emotional distress”.  State v. Wiss, supra (quoting Tennessee Code Annotated § 39–17–308, supra).
It then found that when
viewing the evidence in a light most favorable to the State, it is clear the text messages sent to and preserved by Gidcomb were the means of communication used by [Wiss]. The context of and frequency of the text messages and phone calls demonstrate an intentional and non-inadvertent nature. These intentional communications sent by [him] were threats of illegal actions including, but not limited to, murder, arson, kidnapping, conspiracy, and assault against Gidcomb's family. Therefore, there was no legitimate purpose for the communication.

The hostile context of the communications threatening to kill her mother and children if he was not permitted to see their daughter conveyed [Wiss’] intent to frighten or intimidate Gidcomb. Additionally, [he] knew, or reasonably should have known, such communications would frighten or cause emotional distress upon a similarly situated person as Gidcomb.

Finally, witness testimony accredited by the jury divulges that Gidcomb was truly frightened and intimidated as evidenced by her panicked reactions and ensuing decision to abandon her trip early to confirm her family's well being.
State v. Wiss, supra. 
The court therefore rejected Wiss’ argument, holding that “[t]here was ample evidence presented for any rational juror to conclude beyond a reasonable doubt that [Wiss] did unlawfully and intentionally communicate with Gidcomb through text messages.”  State v. Wiss, supra.  So it affirmed his conviction.

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