State v. Gibbons

• Decision Date: 29 June 2021
• Docket Number: WD 83152
• Citation: 629 S.W.3d 60
• Parties: STATE of Missouri, Respondent, v. Michael Lewis GIBBONS, Appellant.
• Court: Missouri Court of Appeals

629 S.W.3d 60

STATE of Missouri, Respondent,

v.Michael Lewis GIBBONS, Appellant.

WD 83152

Missouri Court of Appeals, Western District.

OPINION FILED: June 29, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2021

Application for Transfer Denied August 31, 2021

James Hobbs, Kansas City, MO, Counsel for Appellant.

Sheena Foye, Kansas City, MO, Co-Counsel for Appellant.

Shaun Mackelprang, Jefferson City, MO, Counsel for Respondent.

Before Division One: Anthony Rex Gabbert, P.J., Edward R. Ardini, Jr., and Thomas N. Chapman, JJ.

Thomas N. Chapman, Judge

Michael Gibbons appeals his convictions, following a jury trial, for two counts of statutory sodomy in the first degree and two counts of child molestation in the first degree and sentences of ten years’ imprisonment for each count of statutory sodomy and five years’ imprisonment for each count of child molestation, with the ten-year sentences to run consecutively to each other, and the five-year sentences to run concurrently with the ten-year sentences. Gibbons raises nine points on appeal. The judgment is affirmed.

Factual and Procedural Background

On November 26, 2018, Gibbons was charged in the Circuit Court of Jackson County with two counts of first-degree statutory sodomy and two counts of first-degree child molestation involving his adopted daughter ("Victim"), born July 31, 2003. A three-day jury trial was held in June 2019. Viewed in the light most favorable to the verdict,¹ the evidence adduced at trial was as follows.

Victim was placed in foster care with Gibbons and his wife ("Mother") when she was six years old, and she lived with the Gibbons family for a few months before going to live with her grandmother. After her grandmother was diagnosed with cancer

, Victim went to live with another foster family before returning to the Gibbonses. In 2012, when she was nine years old, Victim was adopted by Gibbons and Mother. The Gibbonses also adopted other children.

After she was adopted, Gibbons's behavior toward Victim changed, and he "started touching [her]." Initially, Gibbons started "touching [her] breasts." He would enter the bedroom that she shared with her younger sister "at night and kiss [her] and touch [her] places that [she] didn't want to be touched." The touching "started over [her] clothing" but progressed to "under the clothes." When Victim was nine years old, Gibbons "only touched [her] breasts."

Mother noticed that the relationship between Gibbons and Victim "started to get a little more strained." Victim "didn't want to be tickled or touched anymore."

When Victim "got a little older," Gibbons "started touching [her] vagina." Victim was "ten to 11" when Gibbons started touching her vagina. That touching started "over [her] clothing" but progressed to "under the clothes." When Gibbons touched Victim's vagina under her clothing, he touched her on the "[t]he inside." Gibbons "started to put his fingers inside [her]" when she was "11 to 12 years old."

The touching occurred when Victim was in her bed,² and Gibbons "would come in the middle of the night, and he would start touching [her], even after [she] told him not to." The touching made Victim "feel very uncomfortable." She told him to stop, but he did not stop. Gibbons "threatened to touch [her] younger two siblings if [she] told." He gave her things that she wanted "to keep [her] mouth shut." Mother observed that Gibbons "started buying her things and just being more ... secretive."

When Victim was nine or ten years old, or "[f]rom 2012 to about 2014," the touching occurred "[a]bout once a week." She did not tell anyone at first "[b]ecause [she] was afraid no one would believe [her]." By the time Gibbons was putting his fingers inside Victim's vagina, the touching was occurring "[o]nce or twice a week."

On one occasion, Gibbons "had his hands down [Victim's] pants" in the middle of the night, and Mother "walked in on him touching [Victim]."³ Mother saw Gibbons "standing at the bedside with [Victim] in the bed," and she asked what was going on. Gibbons said "nothing," and quickly left the room. Victim buttoned up her pajama top. The next day, Mother asked Victim what had happened, and Victim told Mother that Gibbons "had touched her breasts." Mother "kicked [Gibbons] out of the house" for three days. She allowed him to return after he "promised that he had not done anything and he wouldn't never do anything like that." Mother told Victim that she "would let [Victim] sleep in her bed and lock the door to make sure that he would not touch [Victim]," and that continued for about a month. Victim felt "hurt" and "betrayed" when Mother let Gibbons return home.

On one occasion, "around July" when Victim was eleven years old, Gibbons "made [Victim] touch his penis area" on the outside of his clothes. Gibbons started by "touching [her] and then he would take [her] hand and put it where he wanted it ... [i]n his pants area." He had her "rub against it," and she could feel that his penis was "hard." When Victim was twelve years old and Mother was out, Gibbons "was touching [Victim] and then made [her] touch his penis" in her bedroom. Gibbons made Victim touch his penis "[e]very time [Mother] went out."

On some occasions, "[l]ike once every month," Gibbons "would get [Victim] in his bed and try to get on top of [her]." On those occasions nothing else happened, and Gibbons never had sexual intercourse with Victim.

In November 2016, Gibbons touched Victim in her bedroom. On that occasion, Victim "was texting her friends and he came in [her] room and started doing what he normally did." He touched Victim "inside" her vagina and on her breasts.

On May 14, 2017, Mother's Day, Victim was feeling "really betrayed because [her] mom let him continue to touch [her], even after [she] told her what he did." Victim texted one of her friends and "told him [she] wanted to kill [herself]." Later that same day, Deputy Eli Postlethwait of the Jackson County Sheriff's Office was dispatched to Victim's home in response to a report of "a suicidal subject of a female that had sent Snapchat messages saying a family member molested her." When he arrived, he knocked on the door and was greeted by Gibbons and Mother. They led him to a bedroom where Victim was sitting on (or near) the bed. Victim was "visibly upset" and suffering "some kind of emotional trauma," and "[h]er eyes were red as if she had been crying." The deputy tried to talk to Victim, but she did not feel comfortable talking in front of her parents.

Outside, Victim told Deputy Postlethwait that she "didn't want to be around anymore" and that she "didn't want to be there." She said that "there was somebody in the house that [she] didn't feel comfortable with." She repeatedly said that she "didn't want ‘it’ to happen anymore." She also said that she "didn't want to disturb the family dynamic, but she was concerned for her sister." Victim did not explain what "it" was, and the deputy did not ask for clarification. Victim said that "the last time ‘it’ happened was about November 2016." She said that "a male family member who resided" in the home had been involved in the November 2016 incident.

Victim was taken to the hospital. She told Tammy Kemp, a social worker at the hospital, that Gibbons "was touching her in places that she didn't want to be touched." Victim said that the last touching was in "November of 2016, but it had been going on since she was 11." She said that it had happened "about ten times during that timeframe from 11 to her age." Victim received psychiatric care for "stabilization."

A few days later, Mother talked to Victim at the hospital, and Victim told her that Gibbons had "touched her on the breasts and lower." Victim gestured "with her hands through the abdomen area and lower." Over the "next several days to months," Victim told Mother that Gibbons "had touched her in the breast and in the vagina area."

On May 27, 2017, Dana Plas, an investigator from the Jackson County Children's Division, talked to Victim. Victim was reluctant to speak to Plas and appeared to be "scared and apprehensive." However, she eventually told Plas that she felt safe in her home "with her mom there." She said that she "did not feel safe if [Gibbons] was there." She disclosed that Gibbons "had touched her in places that made her feel uncomfortable."

On July 6, 2017, Brandy Williams, a forensic interviewer at the Child Protection Center, interviewed Victim.⁴ Victim disclosed that she had been abused by Gibbons. Her leg was "shaking throughout the entirety of the interview to the point that it was kind of hard to hear her talking." She was "also tearful during certain points of the interview." Victim told Williams that Gibbons had touched "her private parts" while in her bedroom. She said that he had "rubb[ed] on top of her private part" and had touched her "with a finger on the inside of her private part." Williams understood Victim's use of the term "private part" to mean her vagina. Victim also told Williams that Gibbons touched "her chest area." Victim said that the touching began shortly after she was adopted, when she was nine years old, until she was "about 12 years old."

In July 2017, Gibbons attempted to contact Detective Penny Cole of the Jackson County Sheriff's Office. When the detective returned Gibbons's call, he asked "to know what the allegations were, so he could prepare his response." A few days later, Detective Cole met with Gibbons at the Sheriff's Office's headquarters. Gibbons told her that he did not intend to return home as long as Victim was still there. He said he could not give "any reason that [Victim] would make these allegations against him." He said that he did not want to speak about the past allegation by Victim against him and that "it had been discussed within the home, and that it had been discussed it would not happen again." Detective Cole asked Gibbons about Victim's safety, and he responded that he had moved and "was 30 to 40...