State v. Gaylord
| Decision Date | 20 June 2017 |
| Docket Number | WD 79525. |
| Citation | 526 S.W.3d 293 |
| Parties | STATE of Missouri, Respondent, v. Kelvin J. GAYLORD, Appellant. |
| Court | Missouri Court of Appeals |
J. Eric Mitchell, Clinton, MO, Counsel for Appellant.
Robert Bartholomew, Jr., Jefferson City, MO, Counsel for Respondent.
Before Division Two: Thomas H. Newton, P.J., James Edward Welsh, and Karen King Mitchell, JJ.
Kelvin J. Gaylord appeals the circuit court's judgment, following a jury trial, convicting him of two counts of the class D felony of sexual contact with a prisoner, in violation of section 566.145, RSMo.1 We affirm.
Gaylord was charged by felony information with one count of first-degree rape or attempted rape, two counts of first-degree sodomy or attempted sodomy, armed criminal action, and three counts of sexual contact with a prisoner. Gaylord was tried before a Cass County jury.
Viewed in the light most favorable to the verdict,2 the evidence at trial showed that, at the time of Gaylord's crimes, he was a deputy with the Henry County Sheriff's Office. As part of his job as a bailiff, Gaylord regularly transported prisoners to and from the county jail. Sheriff Kent Oberkrom, who is in charge of the jail, the bailiffs, and all patrol divisions, testified that, in 2014, Gaylord had transported prisoners from one jail to another jail on twenty-one occasions.
On July 29, 2014, Gaylord was assigned to transport a female prisoner, whom we refer to as L.H.,3 from a jail in Jackson County to the Henry County Jail. Gaylord drove to Jackson County in a patrol vehicle that was equipped with patrol lights and the logo of the Henry County Sheriff's Office. He was wearing the uniform and badge of a Henry County Deputy and was equipped with a gun belt and gun. When Gaylord arrived in Jackson County, officers there shackled L.H.'s ankles and wrists, and Gaylord placed her in the back seat of his patrol vehicle.
L.H. testified that, shortly after leaving, Gaylord pulled the vehicle over and moved her to the front seat, purportedly so he "could hear her better." Gaylord soon began to discuss his personal life with L.H. When he told her that other female prisoners had performed sex acts on him, L.H. felt that he was asking her to do the same. Gaylord made several more sexually explicit comments to L.H., and she could see that he was becoming visibly angry. Gaylord then turned off the highway onto an outer road. When he drove into what looked like a cornfield and stopped the vehicle, L.H. thought, "I am not getting out of here alive."
L.H. told the jury that Gaylord got out of the vehicle, put his gun belt in the trunk, and then approached her with a gun in his hand. He began to graphically describe various sex acts that he was going to force L.H. to do, and he threatened to kill her if she did not comply. While holding the gun to L.H.'s head, Gaylord subjected her to the sex acts he had been describing. L.H. stated that Gaylord ejaculated into her vagina and mouth and on her hair and shirt, and she used a paper towel from his car to clean herself. Afterwards, Gaylord ordered L.H. to lift her shirt and use his cell phone to take a picture of her breasts. She complied.
Deputy Laverna Dee Locke testified that she was working as a jailer when Gaylord brought L.H. into the Henry County Jail. Locke saw that L.H. was crying, shaking, and appeared disheveled, with her hair standing up. After Gaylord left the jail, L.H. told Locke that she had been sexually assaulted by Gaylord during transport. The jail administrator interviewed L.H. about her allegations, and then Deputy Locke drove her to Lee's Summit Hospital for a sexual assault exam. The examining nurse testified that she took swabs from various places on L.H.'s body for DNA testing. She told the jury that, during the exam, L.H. was "very upset," "crying," and "hysterical" and was afraid of being returned to the Henry County Jail.
Sheriff Oberkrom testified that he questioned Gaylord about the allegations. Gaylord told him that he had moved L.H. to the front seat and later exited the highway and drove into a cornfield. Gaylord also admitted that, after putting his gun belt in the trunk, he received oral sex from L.H. He claimed that L.H. had offered to do so.
The deputy assigned to investigate the matter spoke with L.H. twice and then interviewed Gaylord. Gaylord initially denied that anything sexual had happened with L.H. Later, when the deputy asked Gaylord how he ended up in this situation, Gaylord said that "he was weak" and "had a lot going on in his life." Following the interview, the deputy obtained a buccal swab from Gaylord for DNA testing. A video recording of that interview was played for the jury.
After determining that the offense occurred in Cass County, Sheriff Oberkrom turned the investigation over to the Cass County Sheriff's Office. One Cass County detective obtained additional DNA buccal swabs from Gaylord. Another went to the crime scene, where he recovered a paper towel that the victim had used to clean herself after the assault. That paper towel matched a roll that Gaylord kept in his patrol car. At trial, two DNA criminalists testified that they found Gaylord's DNA both on the paper towel recovered from the scene and in a vaginal swab from L.H.'s sexual assault exam.
Gaylord did not present any evidence. The court denied his motion for judgment of acquittal at the close of all the evidence. The jury convicted Gaylord on two counts of sexual contact with a prisoner (, sexual intercourse and oral intercourse). The court denied Gaylord's post-trial motions and sentenced him to two concurrent four-year prison terms.
Gaylord argues on appeal that the circuit court erred in denying his motion for judgment of acquittal and entering judgment against him on both counts. He contends that there was insufficient evidence to prove, pursuant to section 566.145, that he was "an employee of, or assigned to work in, any jail " (Point I ), or that he had sexual contact with a "prisoner or offender who is confined in a jail," in that the only evidence was "that there was sexual contact in a cornfield in Cass County" (Point II ).
In determining the sufficiency of the evidence to support a conviction, we are limited to determining whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty of each element of the crime beyond a reasonable doubt.4 State v. Crawford , 68 S.W.3d 406, 408 (Mo. banc 2002). In applying this standard, we accept all the evidence and inferences favorable to the judgment as true, and we disregard all evidence and inferences to the contrary. Id. at 407-08. We defer to the jury's assessment of the credibility and the weight to give each witness's testimony. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990).
§ 566.145.1(1) (emphasis added). The "[c]onsent of a prisoner or offender is not an affirmative defense." § 566.145.4. Here, Gaylord claims that the State failed to prove the elements of the offense charged because there was insufficient evidence that he was "an employee of, or assigned to work in any jail" or that L.H. was a "prisoner or offender who is confined in a jail."
Gaylord argues, in essence, that neither his nor L.H.'s circumstances satisfied the provisions of the statute. To the extent that our review involves the interpretation of statutory language, that is a question of law, which we review de novo. State v. Redifer , 215 S.W.3d 725, 732 (Mo. App. 2006). In interpreting a statute, our goal is to determine the intent of the legislature based on the plain and ordinary meaning of the words used and to give effect to that intent. Id. Where the words used are not defined in the statute, they are "given their plain and ordinary meaning as derived from the dictionary." State v. Barnett , 504 S.W.3d 807, 812 (Mo. App. 2016). If we find that the statute's language makes the intent of the legislature clear and unambiguous, "then we are bound by that intent." Redifer , 215 S.W.3d at 732. The language of section 566.145 is clear and unambiguous. See Barnett , 504 S.W.3d at 813 ().
In Barnett , the appellant made arguments similar to Gaylord's. Id. at 811-13. Barnett, who was working as a teacher at a facility for juvenile offenders when she was convicted of violating section 566.145, also claimed that she was not "an employee of, or assigned to work in any jail, prison or correctional facility." Id. at 811. After examining the plain language of the statute, the Barnett Court found that "it is obvious that the intent of the legislature in creating [this crime] was to prohibit sexual contact between inmates and the employees in positions of power over them." Id. at 813. The Court held that, as a teacher employed at a rehabilitation center for youth inmates, Barnett was an " ‘employee’ of a facility squarely within the meaning of [the statute]." Id. As such, she fell "within the group of people the law intended to prohibit from having sexual contact with [those] under their control." Id.
The same is true here. It is undisputed that, as part of Gaylord's job, he was authorized...
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