                        MISSOURI COURT OF APPEALS
                            WESTERN DISTRICT


STATE OF MISSOURI,                               )
                                                 )   WD76754
                       Respondent,               )
      v.                                         )   OPINION FILED:
                                                 )
DENNIS L. GRAY,                                  )   October 28, 2014
                                                 )
                       Appellant.                )


                Appeal from the Circuit Court of Gentry County, Missouri
                          Honorable Corey Keith Herron, Judge

                         Before Division Three: Gary D. Witt, P.J.,
                        Joseph M. Ellis, and Thomas H. Newton, JJ.


           Mr. Dennis L. Gray appeals his conviction of sexual contact with a student, §

566.086.1 We reverse and remand.

                             Factual and Procedural Background

           In 2012, Mr. Gray was a bus driver transporting students to schools during the

2011-2012 school year, which ended in May 2012. In June 2012, Mr. Gray visited one of

the students at her house. Mr. Gray had been the student‟s bus driver since the eighth

grade. She obtained a car in the tenth grade and stopped riding the bus in March 2012.




1
    Statutory references are to RSMo 2000 and the Cumulative Supplement 2011.


                                                 1
       At the time of the visit, the student‟s mother was at the home. The student had not

invited Mr. Gray over, but she spoke with him briefly at the door for fifteen minutes. The

mother told Mr. Gray that she was going to work. Mr. Gray and the student hugged;

immediately thereafter, “he put his finger between [her] breasts and kind of wiggled it.”

She was shocked, and Mr. Gray left.

       Mr. Gray quickly returned to the student‟s house after her mother left for work.

The student and Mr. Gray talked for a moment, and then he grabbed the back of her neck,

pulled her in, and kissed her on the lips. He asked if the kiss was okay, to which she

responded that she thought of him as a grandfather. After the encounter, he left.

       Later, the student gave a statement to the police that Mr. Gray had wiggled his

finger in between her breasts. After an investigation, Mr. Gray was arrested and charged

with the class D felony of sexual contact with a student, § 566.086, for being a person

employed by an entity that contracts with the school district and knowingly having sexual

contact with a student.

       At the jury trial, the student testified that Mr. Gray wiggled his finger “down at the

bottom, just in between” and touched both of her breasts. She also testified that she did

not consent to the touch. The student‟s account was adduced from other witnesses,

including the mother, a police detective, and an investigator.

       Additionally, Mr. Gray‟s former manager testified that the bus company that

employed Mr. Gray for the last twenty years had a contract with the school district to

provide transportation for the students. The manager testified that the bus drivers who

were eligible to receive unemployment benefits during the months off would receive

                                             2
them until the next school year started. The manager further testified that the plan was

for Mr. Gray to return and drive the school bus for the 2012-2013 school year, but he

terminated Mr. Gray on July 16, 2012, after he was arrested for having sexual contact

with the student. On recross-examination, the manager claimed that the bus drivers were

sent a letter at the end of the school year, informing them that they were no longer

employees of the bus company. He also stated that Mr. Gray was not an employee of the

bus company on the date of the incident because there was no work for him, and he was

receiving unemployment benefits.

      At the close of the State‟s case, Mr. Gray moved for an acquittal on the ground that

he was not an employee of the bus company at the time of the incident. He argued that

he was receiving unemployment benefits at the time of the incident. He further argued

that the term “employee” should be defined according to Chapter 288, the employment

security provisions, because it defines “what an employee is or a person entitled to

unemployment benefits is under the law.” The trial court deferred ruling on the motion

for judgment of acquittal, and it denied Mr. Gray‟s motion to dismiss the charge.

        The jury returned a guilty verdict. The trial court sentenced him to four years in

prison, suspended the execution of that sentence, and placed him on probation for five

years. Mr. Gray appeals.

                                     Legal Analysis

      Mr. Gray raises two points. In the first point, Mr. Gray argues that the trial court

erred in denying his motion to dismiss and motion for judgment of acquittal because the

charging document was defective. He claims that the information failed to state an

                                            3
offense because it failed to allege that his touching of the breast was for the purpose of

arousing or gratifying the sexual desire of a person, an “essential element” of sexual

contact with a student.

        A charging document is sufficient if “it contains all the essential elements of the

offense as set out in the statute creating the offense.” State v. Haynes, 17 S.W.3d 617,

619 (Mo. App. W.D. 2000) (internal quotation marks, brackets, and citation omitted). To

prevail on a defective indictment claim, prejudice must be shown; this is because “th[e] . .

. guarantee [under the Missouri Constitution]2 is not to a technically perfect indictment,

but to demand notice of the criminal nature and the factual foundation of the crime

charged.” State v. Isa, 850 S.W.2d 876, 887 (Mo. banc 1993).

        Section 566.086.1, in relevant part, states that “[a] person commits the crime of

sexual contact with a student if he or she has sexual contact with a student of the public

school and is: . . . [a] person employed by an entity that contracts with the public school

district to provide services.” “Sexual contact” is defined as “any touching of another

person with the genitals or any touching of the genitals or anus of another person, or the

breast of a female person, or such touching through the clothing, for the purpose of

arousing or gratifying sexual desire of any person.” § 566.010(3).

        Mr. Gray cannot show prejudice. Mr. Gray was charged with violating section

566.086. The State alleged that “on or about June 13, 2012, . . . , the defendant was an

employee of an entity that contracts with the . . . School District to provide services, and

2
 Article I, section 18(a), of the Missouri Constitution “guarantees a defendant only the right to „demand
the nature and cause of the accusation.‟” State v. Isa, 850 S.W.2d 876, 887 (Mo. banc 1993).


                                                   4
knowingly had sexual contact with . . . a student of the . . . School District by touching

her breast with his finger.” Because “sexual contact” is statutorily defined, Mr. Gray was

aware that the State was also alleging that the specified touching was “for the purpose of

arousing or gratifying [his] sexual desire.” See State v. O’Connell, 726 S.W.2d 742, 747

(Mo. banc 1987) (finding a defendant was sufficiently notified because a term stated in

the charging document had a statutory definition providing the additional elements,

although the charging document did not allege them). Mr. Gray‟s first point is denied.

       In the second point, Mr. Gray argues that the trial court erred in denying his

motion for judgment of acquittal because the evidence was insufficient. He claims that

the evidence failed to show that he was an employee of the company at the time of the

offense.

       The test for sufficiency of the evidence is “whether there is sufficient evidence

from which a reasonable juror could have found the defendant guilty beyond a reasonable

doubt.” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). In doing so, we view the:

       evidence in the light most favorable to the State and . . . grant the State all
       reasonable inferences from the evidence. [The Court] disregard[s] contrary
       inferences, unless they are such a natural and logical extension of the
       evidence that a reasonable juror would be unable to disregard them. Taking
       the evidence in this light, [the Court] consider[s] whether a reasonable juror
       could find each of the elements beyond a reasonable doubt.

Id. Contradictions in the evidence are credibility issues for the jury‟s resolution, to which

we defer. State v. Long, 972 S.W.2d 559, 561 (Mo. App. W.D. 1998); see also State v.

O’Brien, 857 S.W.2d 212, 215 (Mo. banc 1993).




                                             5
       Mr. Gray argues that the bus company no longer employed him at the time of the

incident because the evidence showed that he was a recipient of unemployment benefits.

Alternatively, he argues that if the meaning of “employed by” is ambiguous in the context

of the statute, we must construe it in his favor as a matter of law, citing for support State

v. Johnson, 244 S.W.3d 144 (Mo. banc 2008).3 The State asserts that the evidence was

sufficient for a reasonable juror to determine that Mr. Gray was temporarily laid off

during the summer months, but was employed by the bus company until being terminated

after the arrest. We have not found case law addressing this issue.4 Therefore, we must

ascertain whom the legislature intended to reference in section 566.086 when it chose the

phrase “a person employed by.” See State v. Rodgers, 396 S.W.3d 398, 401 (Mo. App.

W.D. 2013) . In doing so, we give “employed by” its plain and ordinary meaning, absent

a statutory definition. Id. “If a particular term is given a definition „within a statute,‟ the

courts must effectuate the legislature‟s definition.” Id.




3
 See Daub v. Maryland Cas. Co., 148 S.W.2d 58, 60 (Mo. App. 1941) (stating that “employed” is an
ambiguous term and finding that its ambiguity had to be construed in favor of the insured) .
4
  Our research has produced a case in which the court interpreted “employed” as used in another
offense statute criminalizing the employment of a child under the age of fourteen. See State v. Deck,
83 S.W. 314, 315 (Mo. App. 1904) (“Undoubtedly one cannot be employed unless his time is
occupied at something to which he is giving his attention, skill, or labor.”).


                                                 6
         No statutory definitions exist for “employed by.” However, our statutes define

“employee” in at least three different chapters.5 Those statutory definitions suggest that a

person is an employee if that person is providing a service, and not if the person had

provided services in the past.6 Applying the definitions, the evidence conclusively shows

that Mr. Gray was not an employee of the bus company in June 2012 because he was not

performing any service for that company, and he was not under a contract.

         The State claims that Mr. Gray was still “employed by” the bus company, despite

the fact that was not providing service as a bus driver, because he was temporarily laid

off during the summer months. The State relies on Irwin v. Globe-Democrat Pub. Co.,

368 S.W.2d 452, 455 (Mo. 1963), for support. First, it should be noted that the manager

of the bus company did not testify that Mr. Gray or any of its school bus drivers had been

“laid off” for the summer. In fact, the manager stated that Mr. Gray “was not [an

employee of the bus company on the date of the incident], because he was drawing

unemployment benefits.” Although it is logical to infer that Mr. Gray had to be employed

by the bus company in order for the company to have “terminated” him, said termination

does not determine whether the bus company employed Mr. Gray in June 2012.


5
  Chapter 285, “Employers and Employees Generally,” defines “„employee‟ [as] any individual who
performs services for an employer that would indicate an employer -employee relationship in
satisfaction of the factors in IRS Rev. Rule 87-41, 1987-1 C.B.296.” § 285.500 (emphasis added).
Chapter 287, “Workers‟ Compensation Law,” defines “employee,” in relevant part, as “every person
in the service of any employer, as defined in this chapter, under any contract of hire, express or
implied, oral or written, or under any appointment or election, including executive officers of
corporations.” § 287.020 (emphasis added). Chapter 290, “Wages, Hours and Dismissal Rights,”
defines “employee” as “every woman or man in receipt of or entitled to compensation for labor
performed for any employer.” § 290.400 (emphasis added).
6
  There is an exception to that rule in that a person who is laid off may still be employed according to the terms of a
contract. See, e.g., ACF Indus. Inc. v. Indus. Comm’n, 320 S.W.2d 484, 491(Mo. banc 1959) (interpreting the term
“layoff” in the union contract to not mean “termination of employment”).

                                                          7
      Second, the State‟s reliance on Irwin is misplaced. In Irwin, a certain group of

local union workers decided not to report for work during the strike of their employer by

an unaffiliated labor union. Id. at 453. While the strike continued, the employer sold its

physical property for its business to another company. Id. Thereafter, the workers asked

if they should come into the building after the strike was over. Id. at 454. The employer

informed the workers that it no longer employed them. Id. The workers prevailed in a

lawsuit against the employer for dismissal pay as provided to laid-off workers in the

union‟s collective bargaining agreement with the employer. Id. at 453. The employer

appealed the trial court‟s judgment, claiming that the workers were not entitled to

dismissal pay because they were discharged and not laid off. Id. at 455. The Irwin court,

in distinguishing laid-off employees from discharged ones, focused on the nature of

separation from employment. Id. It found that a layoff is a temporary termination of

employment with re-employment rights, but a discharge is a permanent termination. Id.

at 456. Thus, the State‟s reliance on Irwin is misplaced because it does not support a

finding that laid-off employees are still employed by the employer.

      Chapter 288 contains the employment security law.           An individual who is

unemployed, has been determined to be an insured worker, and has satisfied other

conditions is entitled to benefits. § 288.040. “Totally unemployed” means that “the

individual performs no services and with respect to which no wages are payable to such

individual.” § 288.030.1(28). Under this law, a person is unemployed if he or she is

temporarily laid off. See Mauller v. Div. of Emp’t Sec., 331 S.W.3d 714, 719 (Mo. App.

W.D. 2011) (“[E]mployees who are laid off for a period of time due to a lack of work

                                            8
such as a lay off may be eligible for benefits while they are „temporarily unemployed.‟”);

see also § 288.040.1(3)(b). Our supreme court has defined “layoff” to be “the end to an

employment relation.” Billings v. Div. of Emp’t Sec. 399 S.W.3d 804, 808 (Mo. banc

2013). It further found that a person may still be employed, even if that person does not

report to the workplace or perform services for the employer, as long as the person is

receiving “actual work pay,” as opposed to “severance pay” or “furlough pay.” Id.

       Mr. Gray was unemployed under the law because he was not receiving actual work

pay from the bus company. Section 566.086.1(6) requires a showing that the perpetrator

“is . . . employed by an entity that contracts with the school district.” The evidence

showed that Mr. Gray was employed by such an entity, but not at the time that he had

sexual contact with the student victim. Accordingly, the evidence presented does not

support a finding to substantiate a conviction of the offense, as charged, that Mr. Gray

was “employed by” an entity that contracts with the school district when he had sexual

contact with the student. These facts are insufficient to show employment in June 2012,

thus, that offense should not have been submitted to the jury. Consequently, the motion

for judgment of acquittal should have been granted. We grant Mr. Gray‟s second point.

                                        Conclusion

       Therefore, we reverse the conviction of sexual contact with a student. However,

there was sufficient evidence to support a conviction of first-degree sexual misconduct, §

566.090 (sexual contact without consent). We “may enter a conviction for a lesser

offense if the evidence was sufficient for the jury to find each of the elements and the jury

was required to find those elements to enter the ill-fated conviction on the greater

                                             9
offense.” Whalen, 49 S.W.3d at 187-88; but see State v. Mack, 12 S.W.3d 349 (Mo. App.

W.D. 2000) (finding a lesser-included offense available after finding insufficient evidence

to support a conviction for the greater offense, but failing to enter a conviction, due to

uncertainty in facts). Thus, we remand the case for the trial court to enter a conviction

against Mr. Gray for the lesser-included offense of first-degree sexual misconduct and to

sentence him accordingly. See Whalen, 49 S.W.3d. at 188; see also State v. Minner, 256

S.W.3d 92, 95-96 (Mo. banc 2008) (entering a conviction for the lesser-included offense

after overturning the conviction for insufficiency of the evidence).



                                                 /s/THOMAS H. NEWTON___
                                                 Thomas H. Newton, Judge


Witt, P.J., and Ellis, J. concur.




                                            10
