State v. Scott, 70703

• Decision Date: 12 December 1989
• Docket Number: No. 70703,70703
• Citation: 781 S.W.2d 64
• Parties: STATE of Missouri, Respondent, v. Harry SCOTT, Appellant.
• Court: Missouri Supreme Court

Page 64

781 S.W.2d 64

STATE of Missouri, Respondent, v. Harry SCOTT, Appellant.

No. 70703.

Supreme Court of Missouri En Banc.

Dec. 12, 1989.

Rehearing Denied Jan. 10, 1990.

Burton H. Shostak, Deborah J. Kerns, Clayton, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

BLACKMAR, Chief Justice.

The defendant was charged with four and convicted of two counts of violating § 576.020, RSMo 1986, reading in pertinent part as follows:

1. A public servant commits the crime of acceding to corruption if he knowingly solicits, accepts or agrees to accept any benefit, direct or indirect, in return for:

* * * * * *

(2) His violation of a known legal duty as a public servant.

* * * * * *

Section 556.061(22), RSMo 1986, defines "public servant" as follows:

"Public servant" means any person employed in any way by a government of this state who is compensated by the government by reason of his employment. It includes, but is not limited to, legislators, jurors, members of the judiciary and law enforcement officers. It does not include witnesses;

Count I of the indictment, which is typical of all of the counts, reads as follows:

The Grand Jurors of the County of St. Louis, State of Missouri, charges that the defendant in violation of Section 576.020, RSMo. committed the Class D felony of acceding to corruption, punishable upon conviction under Section 558.001.1(4) and 560.011, RSMo. in that between May, 1986 and September, 1986 at 18199 Chesterfield Airport Road, in the County of St. Louis, State of Missouri, the defendant, being a St. Louis County Correctional Officer, knowingly accepted from Leslie Stephens, a benefit, namely sexual favors in return for his violation of his known legal duty as a corrections officer, namely, his duty to guard the prisoners instead of seeking sexual favors from a prisoner during working hours.

The defendant held the position of Correctional Officer I at the St. Louis County Adult Correctional Institution, known as "Gumbo." In the course of his duties he came in contact with female inmates housed in a special section of this facility.

Leslie Stephens was incarcerated at Gumbo awaiting trial on charges of forgery and conspiracy. On a day near the end of May, 1986 she was approached by the appellant while she was working in the jail laundry. He pulled her toward him, kissed her, and, when she pulled away, told her not to resist or he would have her "locked down," meaning placed in solitary confinement. On a later occasion the appellant pulled her into a shower stall, pushed her to the floor, and inserted his penis into her mouth. Still later during her incarceration he encountered her out of the sight of other guards and prisoners, put his hand down into her pants, and inserted his hand into her vagina.

In late November of 1986 the defendant met Victoria Waters, an inmate serving time for stealing offenses, at a barred gate. He asked her for a "head job," saying that he would take care of her when she got out of jail. She then performed an act of fellatio on him through the bars. She performed a similar act on him at his request in February of 1987, and then submitted to normal sexual intercourse. The acts involving Waters are the subject of Count III of the indictment.

The defendant presents numerous arguments challenging the conviction. After considering them, we affirm.

I. Unconstitutional Vagueness

The defendant presents the argument, often made but seldom sustained, that the statute is unconstitutionally vague and indefinite on its face, and as applied. The brief is barren of close cases in support of these propositions. It is argued that the term "known legal duty" does not give sufficient guidance so that affected persons may know their rights and obligations.

The statute in question is derived from the Model Penal Code, and was adopted in Missouri in 1977. ¹ It is designed to protect the public from public servants who use their official positions for personal ends.

The defendant's supervisors testified about his duties, which consisted of watching over the prisoners and escorting them to the various places within the institution where they were required to be. He did not carry arms. A person of ordinary intelligence who accepts employment as a custodial officer should know that he violates his duties when he seeks and obtains personal sexual gratification from the persons in his custody within the institution. This is all the more so when the acts involved are regarded as depraved or loathsome by many, and violate, or border on violation of, express statutory provisions. ² It is common knowledge, furthermore, that guards have a special advantage over inmates in being able to cause them great annoyance and discomfort, so that their threats or promises may be specially effective.

The defendant argues that known legal duties are confined to duties imposed by statute, regulation, or, possibly, explicit job description. We see no reason for construing the statute so narrowly. The jury may consider the nature of the position and the written and oral instructions of supervisors. It may conclude that certain conduct is inconsistent with the very nature of the position, even though no job description or other direction explicitly prohibits it, and that the inconsistency should be obvious to the public employee.

The appellant points to statutes, past and present, which punished explicit acts of official corruption in particular situations. It is not inappropriate, however, to adopt a general statute designed to apply to all public servants. The legislature is not obliged to anticipate all possible situations in which public servants might try to use their official positions to secure private gratification and might well conclude that the public is best protected by a statute in general terms. The statute puts persons in the position of the defendant on notice that they face prosecution if they use their authority for personal ends.

In our recent decision in State v. Dale, 775 S.W.2d 126 (Mo. banc 1989), we rejected a vagueness challenge to a statute which punishes those who "knowingly neglect" patients in nursing homes. We held there that even laypersons who operated nursing homes were obliged to inform themselves, from regulations, instructions of state supervisors, and medical direction, about what was required for the care of patients. The case is closer than any cited by the defendant, and furnishes strong support for the challenged statute.

II. "Known Legal Duty "

We have already answered the defendant's plaint that the phrase "known legal duty" is so indefinite that it does not give adequate advice to persons in the position of the defendant about what is required of them. The defendant continues his attack on this phrase at several points.

The defendant's duties were adequately demonstrated by the testimony of his supervisors. He is a "public servant" under § 556.061(22). His position exists for the protection and custody of persons involuntarily committed by legal authority, and therefore his every duty is a legal duty. The jury could reasonably find that the challenged conduct was so gross that it was inconsistent with the duties of a custodial officer as shown in evidence.

Nor is it necessary to define "known legal duty" in the instructions. The words are words of common understanding which the jury may apply to the facts it finds. ³

The defendant offered a definition of "known legal duty," as follows:

Legal duty means that which the law requires be done or forborne by a determinate person.

This definition is circular and not particularly informative. We do not believe that it would have aided the jury in its task. The court was under no obligation to give it.

III. "In Return For "

There remains the issue initiated, but perhaps not fully probed, by the defendant's Point III, reading as follows:

The court erred in failing to direct a verdict in favor of defendant at the close of all the evidence because there was no evidence to show what defendant gave "in return for" the alleged benefit he purportedly received. An essential element of the charged crime.

The point as stated is not well taken. There is evidence that the defendant threatened Stephens with solitary confinement if she resisted him. The jury could have found a direct relationship between this threat and her three ensuing sexual involvements with the defendant. Cf. State v. Brown, 364 Mo. 759, 267 S.W.2d 682 (1954). Thus the jury could find that the sexual favors described in Count I were granted in return for the threats. It makes no difference that the defendant may not have had the authority to place the inmates in solitary confinement. A prisoner might well believe that guards had this authority, or could effectively recommend the threatened sanction.

There is evidence that the defendant told Victoria Waters that he would take care of her when she got out of jail if she would perform as he asked her. The jury could find that she complied with this request because of his promise. It is of no moment that the promise may have been vague and indefinite. The defendant demonstrated his venality, and she may have perceived a benefit or feared reprisal. The evidence supports the conviction under Count III.

The threat and the promise as just described were not explicitly charged in the indictment. We are responsible for determining the sufficiency of the indictment, even though it is not challenged, because a sufficient indictment or information is jurisdictional in a criminal case. ⁴ We conclude however, that the indictment is sufficient to withstand a motion to dismiss, and that further details could have been obtained by applying for a bill of particulars as to the manner in which the defendant's legal duty is alleged to have been violated. The bill of particulars was sought only as to "the legal duty violated and its scope." ...