State of Missouri v. Jeffrey Holmes , 2016 Mo. App. LEXIS 326 ( 2016 )

In the
Missouri Court of Appeals
Western District

STATE OF MISSOURI, 
 WD77662
Respondent,  OPINION FILED:
v. 
 APRIL 5, 2016
JEFFREY HOLMES, 

Appellant. 


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable David Michael Byrn, Judge
Before Division Four: Alok Ahuja, P.J., Anthony Rex Gabbert, J., Thomas Fincham, Sp. J.
Jeffrey Holmes appeals his conviction for the crime of acceding to corruption. He first
contends that there was insufficient evidence to prove beyond a reasonable doubt that he
“solicited” or “knowingly accepted” sex from a prostitute, C.C., in exchange for his official
discretion not to arrest her. He further contends that there was an impermissible variance
between his indictment and the relevant verdict director in that the indictment used the term
“knowingly accepted” but the verdict director used the term “solicited.” We affirm.
Facts & Background
On August 24, 2012, Jeffrey Holmes was charged by indictment with two counts of the
class D felony of acceding to corruption, two counts of sexual assault, and one count of deviate
sexual assault. Following a jury trial, Holmes was convicted of one count of acceding to
corruption. That count stated that Holmes, “being a police officer, knowingly accepted from
C.C. [a prostitute] a benefit, namely sexual and deviate sexual intercourse in return for his
official judgment, decision, action, or exercise of discretion as a police officer namely, not
arresting C.C.” The evidence adduced at trial, viewed in the light most favorable to the verdict,
is as follows.
In March 2012, Holmes used his home computer during off-duty hours to repeatedly
access the Backpages.com advertisement of a prostitute, C.C. On March 23, Holmes used his
personal cell phone to arrange an appointment with C.C. at a local hotel; the hotel was not
located in the sector that Holmes regularly patrolled in the course of his official duties. Holmes
and C.C. discussed prices throughout the evening of March 23 and he eventually went to the
hotel to meet her. C.C. testified that when Holmes arrived at her room, he was wearing clothing
reminiscent of a police uniform and he carried a holstered gun and handcuffs, but he was not
wearing his official nametag or police radio.
When C.C. opened the door, Holmes told her that she was “busted for prostitution.” He
forced his way into the room and closed the door, then asked her to put her hands behind her
back to be handcuffed. C.C. declined to do so and Holmes responded, “Well, either you go to
jail for prostitution or you’re going to give me what I want.” C.C. testified that she could not
leave the room because Holmes was blocking the door. Holmes began asking C.C. questions and
jotted down her I.D. information in a small notepad.
Some time later, Holmes put his arm around C.C.’s back and repeatedly told her that he
did not have any money on him so he would have to go to an ATM to get funds. C.C. testified
that he did not actually go to an ATM, and she understood that Holmes “wanted sex without
paying, to get what he want[ed]” in exchange for not arresting her. Holmes then took his gun out
2
and laid it on the table while C.C. performed oral sex on him. C.C. and Holmes then had sexual
intercourse.
After Holmes finished having sex with C.C., he left without arresting her and filed no
report on her prostitution activities. He did not include the visit to the hotel in his official
activity log and he kept C.C.’s identifying information to himself in contravention of
departmental policy. Holmes told C.C. and the hotel’s front desk attendant that he would be
back the next day to conduct a prostitution “bust,” but he did not return on any day thereafter to
do so. Holmes told the front desk attendant that C.C. had agreed to act as a confidential
informant for the “bust,” but he did not report such information to his superiors as required by
departmental policy. Holmes did not work in the KCPD Vice Department, nor did he have any
authorization to conduct an undercover Vice “bust.”
After Holmes left her hotel room, C.C. texted a friend named Sonny to tell him what
happened, but she did not report Holmes to the police at that time. C.C. made her first official
statement regarding the incident on April 18, 2012, when several other officers came to the hotel
upon complaints of prostitution occurring there. The officers questioned her but did not believe
her story at that time. On April 26, 2012, C.C. made a second statement regarding Holmes when
she went to a patrol station to report her car stolen. She spotted Holmes in his uniform standing
outside and informed two other officers that he was the man that assaulted her. C.C. was asked
to give a statement to the Sex Crimes Unit and told the detectives, “All I know is that the MF
fucked me without paying and that’s rape.” C.C. later identified Holmes in a photo lineup and at
trial. Holmes declined to make a statement to police, declined to testify at trial, and declined to
make a statement for his Sentencing Assessment Report.
3
During the jury trial held in April 2014, Holmes moved for a judgment of acquittal at the
close of the prosecution’s evidence and at the close of all evidence; the court denied both
motions. Instruction 5, the verdict director on Count I (i.e., acceding to corruption regarding
C.C.), stated that the jury must find Holmes guilty if it believed that he “solicited from [C.C.]
deviate sexual intercourse or sexual intercourse.” Holmes’s counsel did not object to this or any
other jury instruction.
The jury ultimately found Holmes guilty on Count I but did not convict him on any of the
other charges. In accordance with the recommendation of the jury, the court sentenced Holmes
to fifteen days in county jail and a $2,500 fine. His sentence has been completed at this time and
he currently remains a Kansas City police officer pending the outcome of his appeal. This
appeal follows.
Analysis
1. Sufficiency of the Evidence
In his first point on appeal, Holmes contends that the trial court erred in overruling his
motions for judgment of acquittal because Count I of the indictment stated that he committed the
crime of acceding to corruption by “knowingly accept[ing] from C.C. sexual and deviate sexual
intercourse” in return for not arresting her, but the prosecution failed to introduce evidence
proving this beyond a reasonable doubt. We disagree.
When reviewing a sufficiency of the evidence claim on appeal, we are limited to
determining “whether the State has introduced sufficient evidence for any reasonable juror to
have been convinced of the defendant’s guilt beyond a reasonable doubt.” State v. Jeffrey, 400
S.W.3d 303, 313 (Mo. banc 2013). We will view the evidence “in the light most favorable to the
judgment, disregarding any contrary evidence and granting the State all reasonable inferences
4
from the evidence.” State v. Bradshaw, 411 S.W.3d 399, 401 (Mo. App. S.D. 2013) (internal
citation omitted) (internal quotation omitted). The reliability, credibility, and weight of witness
testimony are for the fact-finder to determine, and it is within the fact-finder’s authority to
believe all, some, or none of a witness’s testimony in making this decision. State v. Kimberley,
103 S.W.3d 850, 857 (Mo. App. W.D. 2003). “Where there are permissible inferences which
could reasonably establish guilt beyond a reasonable doubt, this court does not sit as a ‘super
juror’ with veto powers.” Id.
Pursuant to the Due Process Clause of the United States Constitution, the State in this
case was required to prove each element of the crime of acceding to corruption beyond a
reasonable doubt. Holmes was charged with acceding to corruption under Section 576.020.1,
which provides:
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:
(1) His official vote, opinion, recommendation, judgment, decision, action or
exercise of discretion as a public servant; or
(2) His violation of a known legal duty as a public servant.
So long as the facts proven by the State fall within the statutory definition of “acceding to
corruption” and the charging document informed Holmes of that charge, there is sufficient
evidence to support Holmes’s conviction. State v. Bradshaw, 411 S.W.3d 399, 403 (Mo. App.
S.D. 2013). Here, the language of the indictment informed Holmes that he was being charged
with acceding to corruption under 576.020.1, and the facts ultimately proven fell within the
statutory definition of that offense. We recognize that the indictment alleged that Holmes
committed the offense of acceding to corruption by “knowingly accept[ing]” sexual acts from
C.C. in exchange for his official discretion not to arrest her for prostitution, while the verdict
5
director instructed the jury to find Holmes guilty if he “solicited” sexual acts from her. Judged
under either standard, the evidence in this case was sufficient to support Holmes’s conviction.
The evidence presented at trial first established that Holmes solicited sexual intercourse
from C.C. by calling her to discuss the price of her services and to arrange a meeting between
them at C.C.’s hotel room. Then, the evidence demonstrated that, after forcing his way into
C.C.’s room while in the guise of a police officer, Holmes made it abundantly clear that he would
arrest her for prostitution if she did not cooperate.1 Finally, the evidence demonstrated that
Holmes touched C.C. and told her that he had no money to give her; this, in combination with his
statement that she would be arrested if she did not give him what he previously indicated that he
wanted, made it plain to a reasonable person in C.C.’s situation that he was soliciting sexual
favors in return for not arresting her. The above facts were proven at trial by C.C.’s testimony,
the hotel desk attendant’s testimony, and Holmes’s cell phone and internet records. Holmes did
not testify in his own defense. As stated above, we view all evidence presented at trial in the
light most favorable to the judgment, and we do not challenge the weight and credibility
attributed to witnesses by the jury. See Kimberley, 103 S.W.3d at 857.
The evidence presented at trial also established that Holmes knowingly accepted sexual
intercourse from C.C. in exchange for his official discretion not to arrest her for prostitution.2
1
Although Holmes now argues that his statement to C.C. upon entering her hotel room was a request that
she agree to act as a confidential informant, the jury was not required to adopt this interpretation of Holmes’s
remark, but could instead reasonably interpret it as a request for sex. Holmes’s suggestion that he was interested in
cultivating an informant is belied by the fact that he was not authorized to engage in such activities, did not file the
reports required for such activities, and never followed up with C.C., although he told the front desk clerk that he
would do so when he left the hotel.
2
Pursuant to Section 562.016.3, a person acts “knowingly” when he “is aware of the nature of his conduct
or that [the attendant] circumstances exist,” or when he “is aware that his conduct is practically certain to cause” a
given result. Knowledge and intent may be proven by reasonable inference, and, in fact, usually are proven by such
means. See State v. Burrell, 160 S.W.3d 798, 802 (Mo. banc 2005) (“The State may prove a defendant’s knowledge
by direct evidence and reasonable inferences drawn from the circumstances surrounding the incident.”).
6
After specifically discussing the services of C.C. and making arrangements for them to meet,
C.C.’s testimony was that Holmes did not seek to stop or prevent their sexual encounter: he
stripped off his pants and duty belt to facilitate intercourse and willingly placed his penis in her
mouth and vagina. The evidence also established that Holmes threatened C.C. with arrest, yet
later discussed payment with her (payment for what service or purpose, Holmes does not say)
and did not arrest her after the sexual acts which constituted the benefit. Based on C.C.’s
testimony describing these acts, a reasonable juror could have found that Holmes knowingly
accepted sexual benefits in exchange for reversing his previously-announced intention to arrest
her. C.C.’s testimony regarding Holmes’s actions was uncontroverted at trial and as fact-finder,
the jury was free to believe her version of the events described.3
Simply put, the evidence presented at trial was clearly sufficient to establish that Holmes
both solicited and knowingly accepted sex from C.C. in exchange for his official discretion to
not arrest her for prostitution. The testimony of C.C. and others demonstrated that Holmes called
and made an appointment for sex with C.C., who he knew in advance to be a prostitute; he
arrived at her room in the partial guise of a police officer and immediately threatened her with
arrest; he tried to place her in handcuffs; he told her that she would be arrested unless she gave
him what he wanted; he said he did not have any money to pay her; and then he did not actually
arrest her after she had sex with him. The State met its burden of proving that Holmes
committed the crime of acceding to corruption beyond a reasonable doubt whether his offense is
viewed as “soliciting” or “knowingly accepting” sexual benefits from C.C. Holmes’s first point
on appeal is denied.
3
Though Holmes now maintains that C.C. might have offered him these benefits for some reason other
than fear of arrest, there was no testimony at trial that would lead a reasonable juror to believe this alternative
version of the sexual encounter between Holmes and C.C.
7
2. Variance Between Indictment & Verdict Director
In his second point on appeal, Holmes contends that the trial court plainly erred in issuing
Instruction 5 (the verdict director for acceding to corruption regarding C.C.) in that the
indictment charged that Holmes committed the crime of acceding to corruption by “knowingly
accepting” sexual benefits in exchange for his official discretion not to arrest C.C., but
Instruction 5 stated that he “solicited” sexual benefits in exchange for his official discretion.
Holmes argues that this change in language constituted an impermissible variance between the
indictment and the verdict director. We disagree.
Holmes did not object to any alleged variance at trial; therefore, we review this claim for
plain error only. See State v. Bradshaw, 411 S.W.3d 399, 403 (Mo. App. S.D. 2013) (defendant
failed to object to alleged variance at trial; thus, plain error review was only type available on
appeal). Plain error review is discretionary and involves two steps: first, we must determine
whether the trial court committed “evident, obvious, and clear error affecting the defendant’s
substantial rights”; second, if plain error is found, we then consider whether the error actually
resulted in manifest injustice or a miscarriage of justice. Id. (internal citations omitted). “Plain
error can only serve as the basis for granting a new trial if the error was outcome determinative.”
State v. White, 466 S.W.3d 682, 686 (Mo. App. E.D. 2015) (internal citation omitted). The
defendant bears the burden of showing that an alleged error has produced such a manifest
injustice. State v. Isa, 850 S.W.2d 876, 884 (Mo. banc 1993). An alleged variance between the
crime charged in an indictment versus the crime submitted to the jury “is prejudicial only if it
affects the appellant's ability adequately to defend against the charges presented in the
[indictment] and given to the jury in the instructions.” State v. Lee, 841 S.W.2d 648, 650 (Mo.
banc 1992).
8
Here, Holmes was charged in the indictment with acceding to corruption under Section
576.020.1, which lists both “knowingly accepting” and “soliciting” benefits as means of
committing the crime. Although Holmes’s appellate briefing argues that he was prejudiced by
the alleged variance between the indictment and the verdict director, our review of the record
indicates that Holmes’s principal defense was to attack C.C.’s credibility, and to suggest that she
and the other complaining witness had ulterior motives to accuse Holmes, and had coordinated
their stories. It is also significant that Holmes’s solicitation of sexual benefits from C.C., and his
knowing acceptance of them, occurred as part of a single incident to which C.C. testified.
Moreover, Holmes’s solicitation and knowing acceptance of sexual favors were bound together:
the fact that Holmes had demanded sex of C.C. at the beginning of their encounter was critical to
establishing that he knowingly accepted sex in exchange for not arresting her. Thus, Holmes
cannot show plain error resulting from an alleged variance.
Furthermore, we do not find that the variance now asserted by Holmes resulted in plain
error where his own trial counsel used the same language in other verdict directors. Though
Holmes objects to use of the word “solicited” in Instruction 5, his own counsel submitted
Instruction 6 using the same word rather than the “knowingly accepted” language he now claims
was appropriate. As our Supreme Court has explained, “a defendant cannot complain about an
instruction given at his request,” and “a defendant may not take advantage of self-invited error of
his own making.” State v. Bolden, 371 S.W.3d 802, 806 (Mo. banc 2012). Holmes cannot
demonstrate plain error where his own counsel used the same terms he now objects to, and his
second point is therefore denied.
Conclusion
9
Although Holmes contends both that the evidence was insufficient to support his
conviction, and that there was an impermissible variance between his indictment and the verdict
director, we do not find that the evidence before us supports either of his contentions. For the
foregoing reasons, we affirm the trial court’s judgment.
Anthony Rex Gabbert, Judge
All concur.
10