STATE OF MISSOURI, Plaintiff-Respondent v. DUSTIN WYNNE LEYBA, Defendant-Appellant

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STATE OF MISSOURI, Plaintiff-Respondent, v. DUSTIN WYNNE LEYBA, Defendant-Appellant.

No. SD38875

APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable Kenneth G. Clayton AFFIRMED

Dustin Wynne Leyba ("Defendant") was convicted of harassment in the second degree (see section 565.091) after a jury found him guilty for sending vulgar text messages to A.H. ("Victim"). 1 Second-degree harassment occurs when "[a] person ...

1 Unless otherwise indicated, all statutory citations are to RSMo 2016, including, as applicable, statutory changes effective January 1, 2017. The State did not file a respondent's brief in this case. There is no penalty for not participating, but it deprives us of any argument that the State might have provided. See State v. Cox, 659 S.W.3d 651, 653 n.3 (Mo. App. S.D. 2023). We also do not have the benefit of reviewing the State's exhibits, but because it appears that those exhibits were either read into the record

In Division

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without good cause, engages in any act with the purpose to cause emotional distress to another person." Section 565.091.1. In two points on appeal, Defendant claims: 1) the State presented insufficient evidence to prove that he was the person who sent the text messages at issue; and 2) the trial judge abused his discretion in admitting similar messages that the State claimed Defendant had posted on Facebook. Finding no merit in either of those claims, we affirm the judgment of the circuit court. Background In May, 2023, Victim received a text message from a telephone number that she did not recognize. The message stated (verbatim 2 ): Fuckn stick ur big hairy dicks in your kids n babies asses and pussyss are family tree goes balls deep because are nuts run deep in hairy musty pussy and asses because are God and Jesus are the Kings of ass and pussy pounding dick riding non stop cum blasting action. Victim texted back, "Who is this?" The responding text said, "Dustin Leyba" and "sandwich please I will suck fit n pound that beautiful pussy of your I know your a 38 Triple C." Victim subsequently contacted the Rolla Police Department, and its officers were able to trace the phone number at issue to Defendant as set forth herein. For ease of analysis, we address Defendant's second point first.

verbatim or described in detail in the trial transcript, that omission did not materially impede appellate review. 2 We do not like having to quote the messages at issue in this case without any redactions, but the unusual style of the crude phrasing and misspelled words are important to the analysis and resolution of this appeal.

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Point 2 Defendant's second point claims the circuit court abused its discretion in admitting into evidence "Facebook posts allegedly made by [Defendant], because [they] ... lacked sufficient foundation to be admitted ... and there is a reasonable probability their erroneous admission affected the outcome of the trial." 3 We disagree. The eastern district of our court has recently addressed the proper standards for admitting Facebook posts at trial. Generally, before a trial court may properly admit a writing, the party seeking to admit the evidence must lay a proper foundation for it, establishing the authenticity of the document by proving that the document is what it purports to be. State v. Hein, 553 S.W.3d 893, 897 (Mo. App. E.D. 2018). These foundational requirements apply equally to online and social media messages. [State v. ]Wilson, 602 S.W.3d [328,] 332 [(Mo. App. W.D.)]; State v. Snow, 437 S.W.3d 396, 402 n.4 (Mo. App. S.D. 2014)[.]... Authenticating a writing should not be unduly burdensome and does not require conclusive proof of authorship; rather, authorship can be established with circumstantial evidence. See [State v.] Harris, 358 S.W.3d [172,] 175 [(Mo. App. E.D. 2011)]. To establish authenticity, the proponent may present evidence that the communication came from a device or account under the alleged sender's control, or that the content contains distinctive characteristics identifying the author. Id. A defendant's denial or

3 This point was properly preserved for our review. When the State offered the Facebook posts into evidence, defense counsel made the following objection.

There is no proof that these [messages] actually came from [Defendant], especially the Facebook. Those can be from anybody's. You know, anybody could have made up a profile for [Defendant]. People do it all the time on Facebook, especially. So I would object as to the foundation of those exhibits.

Defense counsel also included the alleged error in his motion for new trial.

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failure to recall making a statement does not automatically preclude admissibility where there is some evidence linking the message to the sender. Wilson, 602 S.W.3d at 333 (finding sufficient foundation to admit social media messages despite defendant's claim he did not send them, where witness testified to recognizing defendant's profile photo and name and identified content as containing information unlikely to be known by others)[.]... We will not reverse a trial court's decision to admit a writing so long as there was some evidence to support the court's finding of authenticity. See Snow, 437 S.W.3d at 403; cf. Harris, 358 S.W.3d at 176. State v. Neither, No. ED 112866, 2025 WL 2698624, at *2-3 (Mo. App. E.D. Sept. 23, 2025).

Trial courts have broad leeway in choosing to admit or deny evidence, and we review a trial court's decision for an abuse of that discretion. Wilson, 602 S.W.3d[ at] 332. Likewise, trial courts have broad discretion to determine whether a party has laid a sufficient foundation to admit evidence. State v. Lumzy, 713 S.W.3d 729, 738 (Mo. App. E.D. 2025). We review the admission of evidence for prejudice, not error alone, and will reverse only if the error was so prejudicial it deprived the defendant of a fair trial. Id. An error is prejudicial only if there is a reasonable probability that, but for the trial court's error, the outcome of the trial would have been different. Id. Id. at *2.

Here, the testimony at trial was that the profile page of the Facebook account at issue contained a picture of Defendant, and two posts on that page contained vulgar language that used similar wording to the text messages that Victim received from the phone that was seized from Defendant's person. Victim testified to distinctive characteristics that she observed in the Facebook posts, namely language that was similar to the harassing text messages she received on her phone, and she testified that the picture on the Facebook account looked like the person she knew to be Defendant. Accordingly,

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we conclude that "some evidence" of "distinctive characteristics identifying the author" was adduced. See id at *3. Point 2 is denied. Point 1 Defendant's first point on appeal claims "there was insufficient evidence to prove beyond a reasonable doubt that [Defendant] sent text messages to [Victim]." Again, we disagree. To determine whether the evidence presented was sufficient to support a conviction, this Court accepts as true all evidence tending to prove guilt, including all reasonable inferences that support the verdict, and we ignore all contrary evidence and inferences. State v. Clark, 490 S.W.3d 704, 707 (Mo. banc 2016) (citing State v. Ess, 453 S.W.3d 196, 206 (Mo. banc 2015)). This Court's role is limited to "a determination of whether the [S]tate presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty." State v. Twitty, 506 S.W.3d 345, 346 (Mo. banc 2017) (citing State v. Vandevere, [175] S.W.3d 107, 108 (Mo. banc 2005)). The appellate court "defer[s] to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony." State v. Davis, 219 S.W.3d 863, 866 (Mo. App. S.D. 2007) (citing State v. Nichols, 20 S.W.3d 594, 597 (Mo. App. S.D. 2000)). State v. Whitney, 697 S.W.3d 117, 125 (Mo. App. S.D. 2024). And our high court has rejected the notion that the State is under any obligation to disprove every reasonable inference except that of guilt. State v. Moore, 432 S.W.3d 779, 782 (Mo. App. E.D. 2014) (citing State v. Grim, 854 S.W.2d 403, 405-08 (Mo. banc 1993)). "Weaknesses in the evidence surrounding who authored the writing do not affect admissibility but instead are to be considered by the jury when deciding how much weight to give the writing." Neither, 2025 WL 2698624, at *3. "Authenticating text messages requires that '[t]he party seeking admission of this evidence [must] show [that] the [text] messages were actually written by the person who

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allegedly sent them.'" Lumzy, 713 S.W.3d at 738 (quoting Hein, 553 S.W.3d at 897). That proof may be in the form of circumstantial evidence, and only "some proof" must be offered that the person at issue actually sent them. Id. at 739. Authenticating text messages should not be unduly burdensome. Id. Here, Victim testified at trial that when she received the vulgar text message, she asked the sender, "Who is this?[,]" and she received the response: "Dustin Leyba[.]" Victim did not know Defendant personally, but she "knew of him[,]" so she decided to take a look at his Facebook page. Victim testified that the page she located had the name "Dustin Leyba[,]" along with a picture of the person that she knew to be Dustin Leyba. Victim also testified that the Facebook page had posts that had "similar" wording to the text message that she had received on her phone from the person claiming to be Dustin Leyba. Detective Shane Switzer of the Rolla Police Department testified that a Phelps County Deputy had seized a phone directly from Defendant that matched the phone number at issue in this case. Detective Switzer also testified that the Phelps County Sheriff's Department confirmed that the phone number at issue "belonged to" Defendant. Detective Shawn Hedge with the Phelps County Sheriff's Department testified that he used idiCORE, "a data mining company that collects information that's available through open sources[,]" to connect the same phone to Defendant.

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We conclude that the evidence adduced by the State was sufficient to allow a reasonable juror to find that Defendant was the person who sent the text messages at issue. Point 1 is also denied, and the judgment of the circuit court is affirmed.

DON E. BURRELL, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C.J. – CONCURS BECKY J. WEST, J. – CONCURS