State v. Kelso
391 S.W.3d 515
Mo. Ct. App.2013Background
- Kelso, the victim's mother's boyfriend, was convicted of first-degree child molestation for having the victim (a child under 14) put a condom on his penis.
- In 2009 the victim, living in a Saline County trailer, was subjected to Kelso's sexualized conduct during multiple instances including condom exposure and instruction.
- Kelso described sexual acts and condoms to the victim, performed acts in the bathroom, and gave the victim underwear and notes soliciting sexual acts.
- During trial, the State charged first-degree child molestation and submitted Instruction 6, alleging touching the victim's hand to Kelso's genitals through the clothing.
- The jury found Kelso guilty and the court sentenced him to ten years; Kelso appeals arguing the evidence failed to prove touching through clothing because a condom is not clothing.
- The court affirms, holding clothing is not an element of the offense and the State was not required to prove clothing's presence, despite the verdict-director’s wording.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clothing is an element of first-degree child molestation | Kelso: through-clothing touching requires clothing present | Kelso: condom not clothing; State failed on element | Clothing is not an element; evidence sufficient |
| Whether the State was required to prove clothing due to the verdict-director | Kelso: verdict-director implied proving clothing | Kelso: not required to prove clothing | No proof of clothing required; verdict-director does not rise to element proof |
| Whether Miller controls the outcome regarding through-clothing language | Kelso: Miller requires proof of skin-to-skin or clothing methods | State relied on broader interpretation | Miller does not control; presence/absence of clothing inconsequential under current statute |
Key Cases Cited
- State v. Patton, 229 S.W.3d 631 (Mo.App. S.D. 2007) (touching through clothing permitted; clothing presence not essential)
- State v. Potter, 747 S.W.2d 300 (Mo.App. S.D. 1988) (gravamen is touching for sexual arousal; through clothing inconsequential)
- State v. Miller, 372 S.W.3d 455 (Mo. banc 2012) (instructional error for through clothing language where no such language existed earlier)
- State v. Taylor, 238 S.W.3d 145 (Mo. banc 2007) (venue/time as non-essential in MAI; substantive law controls)
- Kamaka, 277 S.W.3d 807 (Mo.App. W.D. 2009) (State must elect a method of commission; unanimity preserved)