Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Gentry County, Missouri. Honorable Corey Keith Herron, Judge.
Daniel McPherson, Jefferson City, MO, Counsel for Respondent.
Before Division Three: Gary D. Witt, P.J., Joseph M. Ellis, and Thomas H. Newton, JJ. Witt, P.J., and Ellis, J. concur.
Thomas H. Newton, J.
Mr. Dennis L. Gray appeals his conviction of sexual contact with a student, § 566.086. 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.
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 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 ...