State of Missouri v. Mallorie M. Barnett , 2016 Mo. App. LEXIS 894 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
STATE OF MISSOURI, ) No. ED103062
)
Respondent, ) Appeal from the Circuit Court
) of Montgomery County
vs. ) 12AA-CR00306-02
)
MALLORIE M. BARNETT, ) Honorable Wesley C. Dalton
)
Defendant/Appellant. ) FILED: September 13, 2016
OPINION
Mallorie M. Barnett (Defendant) appeals from the judgment upon her conviction
following a jury trial for one count of Sexual Contact with a Prisoner or Offender by
Probation/Parole Officer/Employee of Jail, Prison, or Correctional Facility, in violation of
Section 566.145, RSMo 2000, 1 for which she was sentenced to thirty days in the county jail. We
affirm.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the following evidence was adduced at
trial: In August 2011, Defendant was hired by the Division of Youth Services to work as a
special education teacher at the Montgomery City Youth Center (the Center). The Center is
1
Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended.
run by the Department of Social Services and is a secure residential facility for youth who have
been convicted of crimes while under 17 and sentenced as adults. 2
Shortly after Defendant began working at the Center, Loren Hume (Hume), the facility
manager, received allegations that Defendant had brought contraband items, including a cell
phone and chewing tobacco, into the Center for a 19-year-old man (Juvenile Prisoner) who was
one of the Center’s residents. Hume testified that for a while he tracked both Defendant and
Juvenile Prisoner and eventually confronted Juvenile Prisoner about whether he had a cell
phone. Juvenile Prisoner denied he possessed a cell phone.
From November 30 to December 2, the Center put on an annual play, in which both
Center residents and employees participated. Certain portions of the play set, where Juvenile
Prisoner and Defendant were during the play, were hidden from the security cameras. After
the play, Hume still suspected that Juvenile Prisoner had a cell phone that was provided by
Defendant, so he monitored Juvenile Prisoner on security cameras. Hume informed Defendant
that there was going to be a search of Juvenile Prisoner. Hume testified that shortly after his
conversation with Defendant he observed on security video what he believed to be Defendant
contacting Juvenile Prisoner to warn him about the impending search. Following a strip search
of Juvenile Prisoner, Hume found the cell phone. A few days later, Juvenile Prisoner disclosed
to Hume that Defendant had indeed provided him with the cell phone and that Defendant
had given Juvenile Prisoner oral sex during the play.
2
Section 211.073 gives a court the statutory authority to invoke “dual jurisdiction of both the
criminal and juvenile codes” in cases involving an offender under 17 who is transferred to a
court of general jurisdiction and whose prosecution results in a conviction. Section
211.073.1. Under this statute, the trial court may “impose a juvenile disposition . . . and
simultaneously impose an adult criminal sentence, the execution of which shall be suspended
pursuant to the provisions of this section.” Id.
2
Thereafter, the Department of Social Services began an investigation into the allegations
made by Juvenile Prisoner. Brian Lane (Lane), a Department of Social Services investigator,
testified that he interviewed both Juvenile Prisoner and Defendant. Lane testified that Juvenile
Prisoner told him Defendant provided him with the cell phone, chewing tobacco, and that
she gave him oral sex. While Defendant initially denied providing anything to Juvenile
Prisoner in the Center, she eventually admitted that she had provided both items and had given
Juvenile Prisoner oral sex in the backstage area during the play when the security cameras
were blocked by the play set.
The State then charged Defendant by amended information with one count of the class
D felony of sexual contact with an inmate, pursuant to Section 566.145, for events that
occurred on or between November 30 and December 2, 2011.
On April 22, 2015, following a jury trial, Defendant was found guilty as charged. The
jury recommended a punishment of 30 days in jail with no fine. The trial court sentenced
Defendant in accordance with the jury’s recommendation. This appeal follows. Additional facts
will be set forth in the opinion as necessary to address Defendant’s points on appeal.
Motion to Dismiss for Failure to State Offense
In her first point, Defendant argues the trial court erred in denying her Motion to Dismiss
for Failure to State Offense. 3 Defendant contends that she was neither an employee of, or
3
Defendant filed a pre-trial Motion to Dismiss for Failure to State Offense, arguing that the
evidence was insufficient to sustain her conviction for sexual contact with an inmate. Following
a hearing on the matter, the motion was denied. Defendant also filed a motion for judgment of
acquittal at the end of State’s evidence, for judgment of acquittal at the close of all the evidence,
and a motion for new trial in which she preserved both points on appeal. While Defendant’s
Point I only addresses the Motion to Dismiss for Failure to State Offense, we gratuitously
consider Defendant’s motion to dismiss as a claim denying her motion for judgment of acquittal.
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assigned to work in any jail, prison or correctional facility, nor was the alleged Juvenile Prisoner
an offender or prisoner as contemplated by Section 566.145. We disagree.
The statute under which Defendant was convicted provides as follows:
1. A person commits the crime of sexual contact with a prisoner or offender if:
(1) Such person is an employee of, or assigned to work in, any jail, prison
or correctional facility and such person has sexual intercourse or deviate sexual
intercourse with a prisoner or an offender who is confined in a jail, prison, or
correctional facility; or
(2) Such person is a probation and parole officer and has sexual
intercourse or deviate sexual intercourse with an offender who is under the direct
supervision of the officer.
2. For the purposes of this section the following terms shall mean:
(1) “Offender,” includes any person in the custody of a prison or
correctional facility and any person who is under the supervision of the state
board of probation and parole;
(2) “Prisoner,” includes any person who is in the custody of a jail, whether
pretrial or after disposition of a charge.
3. Sexual contact with a prisoner or offender is a class D felony.
4. Consent of a prisoner or offender is not an affirmative defense.
Section 566.145. When we review a challenge to the sufficiency of the evidence, we accept “as
true all of the evidence favorable to the state, including all reasonable inferences drawn from the
evidence.” State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). We reject “all contrary
evidence and inferences.” State v. Botts, 151 S.W.3d 372, 375 (Mo. App. W.D. 2004). We are
limited to determining “whether there is sufficient evidence from which a reasonable juror might
have found the defendant guilty beyond a reasonable doubt.” Grim, 854 S.W.2d at 405. We do
not “act as a ‘super juror’ with veto powers, but give[ ] great deference to the trier of fact.” State
v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). Nor do we “weigh the evidence anew since the
fact-finder may believe all, some, or none of the testimony of a witness when considered with the
facts, circumstances and other testimony in the case.” Id. Statutory interpretation raises a
question of law that we review de novo. Id. at 507.
4
Before trial, Defendant filed her Motion to Dismiss for Failure to State Offense in
which she argued that Juvenile Prisoner was not a prisoner or offender and that the Center was
not a “correctional facility, jail, or prison” under Section 566.145. The trial court held a
hearing on the matter in which Ricky Dixon (Dixon), a former assistant manager of the Center,
testified with regard to the purpose of the Center and the meaning of “dual jurisdiction.”
On direct examination, Dixon testified that the purpose of the Center was to house
dual-jurisdiction youth. He explained that dual jurisdiction was a sentencing option for the
courts in which they can simultaneously impose a juvenile sentence and an adult sentence,
resulting in a suspended execution of adult sentence while they are in custody of Division of
Youth Services. Dixon testified that, by statute, to be eligible for the dual-jurisdiction program,
the youth has to be under the age of 17 at the time of sentencing, and the trial court can ask the
Division of Youth Services to do an assessment to determine if the youth is amenable to
treatment through the program.
Once sentenced into the program and at some point before his 21st birthday, the youth
will again appear before the trial court and, at that time, the court will determine whether it will
release the youth on probation or impose the adult sentence and send the youth to the
Department of Corrections. If the trial court sends the youth to the Department of Corrections, the
court may, if it so chooses, give the youth credit on the adult sentence for the time spent at the
Center.
Here, Juvenile Prisoner became eligible for the dual-jurisdiction program and
became a resident of the Center following a conviction for robbery that occurred when he
was 16 years old and after he had been certified as an adult by the juvenile court. During the
5
time of the incident with Defendant, Juvenile Prisoner was 19 and was housed at the Center.
At the time of trial, Juvenile Prisoner was 20 years old.
With regard to the daily operation of the Center, Dixon testified that the residents of the
Center are considered to be in the custody of the Division of Youth Services, are not permitted
to come and go as they please, are not allowed to move about within the facility as they
please, and they are always confined to certain areas of the facility at particular times. Dixon
testified that the outer perimeters of the facility are locked. Dixon also testified that
whenever any resident needs to leave the facility for any reason, he is fully shackled and
escorted by security officers. Following Dixon’s testimony, the trial court denied the motion to
dismiss and the case proceeded to trial.
Under Section 566.145, the term “‘[o]ffender’, includes any person in the custody of
a prison or correctional facility and any person who is under the supervision of the state
board of probation or parole” and the term “‘[p]risoner’, includes any person who is in the
custody of a jail, whether pretrial or after disposition of a charge.” Section 566.145.2(1) and
(2). The legislature did not define the words “jail,” “prison,” or “correctional facility” for
purposes of Section 566.145. In “the absence of a statutory definition, words will be given their
plain and ordinary meaning as derived from the dictionary.” State v. Oliver, 293 S.W.3d 437,
446 (Mo. banc 2009). Moreover, the primary rule of statutory interpretation is to give effect to
legislative intent as reflected in the plain language of the statute at issue. Ivie v. Smith, 439
S.W.3d 189, 202 (Mo. banc 2014).
“Jail” means “a place where people are kept when they have been arrested and are being
punished for a crime.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2523
(3d ed. 1993). “Prison” means “a building where people are kept as punishment for a crime or
6
while they are waiting to go to court.” Id. Finally, “correctional facility” means “a place where
people are kept when they have been arrested and are being punished for a crime: prison.”
Under MAI-CR 333.00, “corrections employee,” as used in Chapter 565, means
….a person who is an employee, or contracted employee of a subcontractor, of a
department or agency responsible for operating a jail, prison, correctional facility,
or sexual offender treatment center or a person who is assigned to work in a jail,
prison, correctional facility or sexual offender treatment center.
Here, based on the definitions contained in the statute, the MAIs, and the plain meanings of
the words not defined, Defendant, a corrections employee, was guilty of sexual contact with a
prisoner or offender. First, the Center is a “jail, prison or correctional facility.” Residents of
the Center, like Juvenile Prisoner, are confined there only after being convicted of an offense
in court and accepted into the youth program. Although not run by the Department of
Corrections, the Center is a rehabilitation facility for youths who have been convicted as both
juveniles and adults, and it was specifically created for that purpose. Therefore, the Center
fits squarely under the plain meaning of “jail, prison or correctional facility.” Further,
Juvenile Prisoner was an “offender” under the statutory definition of that word, because he
was certified as an adult and convicted of robbery when he was 16 and was in the custody of
the Center at the time of the incident with Defendant. Therefore, Juvenile Prisoner was a
person in the custody of a “ prison” or “ correctional facility.” 4
Finally, it is obvious that the intent of the legislature in creating the crime of sexual
contact with a prisoner or offender was to prohibit sexual contact between inmates and the
4
Defendant argues that the definition of “correctional center” in Section 217.010.4 should
control here. However, as the State correctly points out, the legislature specifically stated that
the definition of “correctional center” in Section 217.010 should be used in that Chapter and in
Chapter 558, with no mention of Chapter 566, under which Defendant was convicted. If the
legislature intended “correctional facility” and “correctional center” to mean the same thing, it
would have said so.
7
employees in positions of power over them, regardless of whether or not the sexual activity
was consensual. See generally State v. Hall, 321 S.W.3d 453, 456 (Mo. App. S.D. 2010). An
educator employed at a rehabilitation center for youth inmates, such as the Center, would fall
within the group of people the law intended to prohibit from having sexual contact with the
youths under their control.
Based on the foregoing, the trial court did not clearly err in denying Defendant’s
motion to dismiss. The State sufficiently proved Defendant committed the offense of having
sexual contact with a prisoner or offender in that Juvenile Prisoner was an “offender” and
Defendant was an “employee” of a facility squarely within the meaning of Section 566.145.
Point I is denied.
Motion to Suppress Evidence
In her second point, Defendant argues the trial court erred in denying her motion to
suppress her confession. Defendant contends that her statements to the Department of Social
Services investigator were not voluntarily given, were the result of governmental or police
coercion and improper inducement, and violated her Miranda 5 rights. We disagree.
When reviewing a trial court’s ruling on a motion to suppress, we are limited to
determining whether the evidence is sufficient to support the trial court’s order. State v. Brown,
18 S.W.3d 482, 484 (Mo. App. E.D. 2000). In doing so, we view all facts and reasonable
inferences in favor of the trial court’s ruling. State v. Dye, 946 S.W.2d 783, 786 (Mo. App. E.D.
1997). The challenged ruling of the trial court will not be disturbed absent manifest error. Id.
However, whether a suspect was in custody is an issue of law that we review de novo. State v.
Little, 473 S.W.3d 662, 667 (Mo. App. E.D. 2015).
5
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
8
A criminal suspect is entitled to Miranda warnings, consistent with his Fifth Amendment
right against self-incrimination, once the suspect is subjected to a “custodial interrogation.”
Miranda, 384 U.S. at 444; State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000). The Missouri
Supreme Court has enumerated six factors to take into consideration when determining custody:
(1) whether the suspect was informed at the time of questioning that the questioning was
voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect
was not under arrest; (2) whether the suspect possessed unrestrained freedom of movement
during questioning; (3) whether the suspect initiated contact with authorities or voluntarily
acquiesced with official requests to answer questions; (4) whether strong-arm tactics or deceptive
stratagems were employed during questioning; (5) whether the atmosphere of the questioning
was police dominated; or, (6) whether the suspect was placed under arrest at the termination of
questioning. Werner, 9 S.W.3d at 595. Determination of custody is not limited to applying these
factors, but their presence and absence guide courts in assessing the totality of the circumstances
surrounding interrogations. Werner, 9 S.W.3d at 596; State v. Hill, 247 S.W.3d 34, 44 (Mo.
App. E.D. 2008). The “ultimate inquiry” is whether the restraint on the suspect’s movement rose
to the degree associated with a formal arrest. Hill, 247 S.W.3d at 45.
Before trial, Defendant filed a motion to suppress her statements to the investigator.
A hearing was held on the motion wherein the investigator testified. Following the hearing
and upon reviewing the evidence, the trial court denied the motion to suppress.
Here, after weighing the totality of the circumstances, we find, as the trial court did,
that none of the factors determinative of custody are present. First, Defendant agreed to be
interviewed. Second, the investigator was not coercive or intimidating. Moreover, at the end
of the interview, Defendant thanked the investigator for his kindness and “said that she
9
appreciated that [he] wasn’t judgmental towards her regarding the circumstance.” Finally, the
investigator was not wearing a uniform, did not have a gun, did not have handcuffs, did not
indicate that he would or could take Defendant into custody, and the suspect was free to leave
throughout the course of the interview.
Based on the record, we find that Defendant was not in custody because the restraint on
her did not rise to a degree associated with formal arrest. Because Defendant was not subject to
custodial interrogation, the investigator was not required to inform Defendant of her Miranda
rights before initiating questioning. Accordingly, the trial court did not err in allowing
Defendant’s statements into evidence at trial. Point II is denied.
Conclusion
The judgment is affirmed.
____________________________
Mary K. Hoff, Judge
Robert M. Clayton III, Presiding Judge, and Lisa P. Page, Judge, concur.
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