                                            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.




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