State v. Gee

684 S.W.3d 363

STATE of Missouri, Respondent,

v.Xavier Blake GEE, Appellant.

WD 85844

Missouri Court of Appeals, Western District.

OPINION FILED: February 20, 2024

Appeal from the Circuit Court of Boone County, Missouri, Honorable R. Jeffrey Harris, Judge

Ellen Flottman, Columbia, MO counsel for Appellant.

Dora Fichter, Jefferson City, MO counsel for Respondent.

Before Division Two: Anthony Rex Gabbert, Presiding Judge, Karen King Mitchell, Judge, and Janet Sutton, Judge

Janet Sutton, Judge

Xavier Gee (Gee) appeals the Boone County Circuit Court’s (trial court) judgment convicting him, following a jury trial, of rape in the first degree under section 566.030,¹ sodomy in the first degree under section 566.060, kidnapping in the first degree under section 565.110, two counts of robbery in the first degree under section 570.023, and two counts of armed criminal action under section 571.015. For reasons explained herein, we affirm the trial court.

[1, 2] Gee brings four points on appeal. First, Gee argues the trial court erred in overruling Gee’s motions for judgment of acquittal on his kidnapping charge because the State failed to establish beyond a reasonable doubt that Gee confined Victim Two for the purpose of facilitating the commission of sodomy. Second, Gee argues the trial court plainly erred in declining to answer the jury’s question during the penalty phase about whether Gee’s sentences would run consecutively or concurrently. Third, Gee argues the trial court plainly erred in sustaining the State’s objection to his proffered non-MAI² jury instruction because the jury needed to know the trial court had no discretion to run the majority of sentences concurrently, but that all sentences except those for the two robberies were statutorily required to run consecutively. Fourth, Gee argues the trial court plainly erred in overruling Gee’s objection to State’s Exhibit 44, clip 7 that contained Gee’s statements that he used drugs because those statements were irrelevant and constituted prejudicial bad acts. We affirm the trial court’s judgment.

Factual and Procedural Background³

Victim One

On December 21, 2020, Victim One stayed at a motel in Columbia, Missouri, and provided sexual services in exchange for money. Gee contacted Victim One and discussed prices for sexual services and where to meet. Gee arrived at the motel and told Victim One he only had $100.00, which was less than the previously agreed-upon price. Victim One agreed to perform oral sex on Gee in exchange for $100.00.

Victim One performed oral sex, and Gee gave her $100.00. But, when Victim One went to the bathroom to clean up, Gee "pulled out a gun on [her]," hit Victim One with the gun, knocked her to the ground, and demanded money. Victim One only had the $100.00 Gee had already given her, but Gee demanded more. Gee made Victim One crawl on the ground to get her purse and show him her wallet. Gee said that his gang leader would not be happy with him and told Victim One he had to take something from her. Victim One offered her phone and laptops, but Gee said he did not want those and would take something else.

Gee then told Victim One "I’m going to have to f*** you," and had Victim One "strip back down." Gee then raped Victim One while holding a gun against the back of her head. Gee took a picture of Victim One’s identification and threatened to kill her and her family if Victim One told anyone. Throughout the assault, Victim One was crying and screaming. Victim One feared Gee was going to kill her and she begged for her life.

When he was done, Gee ordered Victim One to crawl to the comer of the room and to put her nose in the corner for fifty seconds as Gee left. Victim One waited about sixty seconds before calling the police. When the police arrived, Victim One reported what happened, but at first did not tell the police that she was a sex worker because she feared they "wouldn’t take it serious," but told officers the truth during a later interview.

After reporting, Victim One then received medical treatment and underwent a sexual assault examination. Police recovered the surveillance video from the motel that showed Gee going to Victim One’s room.

Victim Two

Victim Two also provided sexual services in exchange for money. Gee was a "regular" of Victim Two’s. Gee contacted Victim Two on January 21, 2021, and arranged for Victim Two to pick him up near his apartment. Victim Two picked up Gee in her car, and Gee was "more talkative than usual" and asked Victim Two how much money she had saved up for a new car. Gee then directed Victim Two to drive to a park.

As Victim Two drove, she heard a gun cock and saw the barrel of a gun out of the corner of her eye. Gee then said, "This is a robbery. You’re going to do exactly what I say and you’re going to drive me wherever I want to go." Gee then "pistol whipped" Victim Two across the face with his gun, knocking off her glasses. Gee ordered Victim Two to strip down to her underwear and Victim Two complied. Victim Two asked Gee multiple times whether he was going to rape her. Victim Two tried to contact emergency services with her smart watch, but Gee noticed her attempt, took her watch, and hit Victim Two with his gun again.

Gee ordered Victim Two to drive as Gee sat in the back seat pointing his gun at her. Gee ordered Victim Two to drive on the interstate. As Victim Two drove, Gee was on his phone planning "to meet up at a spot" to try and "sell" Victim Two, At some point, Gee told Victim Two to get off the interstate.

Victim Two got off the interstate outside the Columbia city limits. Victim Two believed she was going to be "gang raped" or sold, and eventually stopped the car at a fork in the road. Victim Two told Gee "he could just shoot [her] right then and there." Gee said he was going to get $5,000.00 out of Victim Two, and asked Victim Two what she had to "get close to that number." Victim Two gave Gee her wedding ring and another ring and told Gee about a gun in the trunk of her car, which seemed to excite Gee. Gee then ordered Victim Two to drive to a cul-de-sac.

When Victim Two drove to the cul-de-sac, Gee ordered Victim Two out of the car and on her knees to beg for her life. Gee made Victim Two suck the end of his pistol. Gee then ordered Victim Two to get into the trunk of her car. Victim Two did not want to get into the trunk, but Gee "pinky-promised" Victim Two that he would not take Victim Two to "the spot." Victim Two, still in her underwear, then got into the trunk of her car and covered up with blankets to keep warm. At some point while Gee and Victim Two were in the cul-de-sac, Gee took Victim Two’s gun from her trunk.

With Victim Two in the trunk, Gee drove Victim Two’s car so erratically that Victim Two believed Gee was going to wreck her car. Eventually, Gee stopped by a metal building, announced he was "at the spot," and let Victim Two out of the trunk.

Gee and Victim Two then went into the backseat of the car, and Gee told Victim Two that she had to perform certain sexual acts and insinuated that Victim Two had to do a "blow job." When Victim Two said it was nonconsensual, Victim Two "had to pretend that [she] wanted to give him the best blow job of his life so that he wouldn’t do worse things to [her.]" Forcing Victim Two back out of the car, Gee held his gun to Victim Two’s head and had Victim Two record herself with Gee’s phone as she performed oral sex. Gee "pistol whipped" Victim Two during the assault and ejaculated on her face. Believing Gee "seemed relieved at this point," and "was satisfied he got what he wanted," Victim Two then cleaned her face with a paper towel.

Gee was hesitant to let Victim Two go because she knew Gee’s name, his number, and where he lived, but Victim Two assured Gee that she would not report the crime. Victim Two said she would not call the police because, "I’m an escort. They’ll never believe me. They’ll laugh at me." Victim Two then dropped Gee off near his apartment and thanked Gee for "having mercy" on her.

Victim Two then reported the assault to the police and gave them the paper towel she used to clean her face. The police also collected a DNA swab from Victim Two’s mouth.

The police then executed a search warrant on Gee’s apartment on January 22, 2021. During the search, the police recovered Victim Two’s gun from a toilet basin as well as Victim Two’s rings from an inside pocket of a brown winter vest that Gee was wearing the night of the offense. Police took Gee’s cell phone from him at the time of his arrest and recovered from it the video that Victim Two took of the assault using his phone.

A Columbia detective interviewed Gee that same day. During the interview, Gee admitted that he threatened the Victims with a gun and that he robbed them. Gee also admitted that he had the Victims at gunpoint and that he wanted the Victims to fear him so they would give him something of value. Gee further admitted that he "put" Victim Two into the trunk of her car because he threatened her with a gun and that Victim Two "was doing everything to make [him] happy." Gee stated, "I’m not going to lie to you and tell you that I didn’t do these things, because I did."

Police obtained a buccal swab from Gee. Gee’s DNA matched the DNA profile from the semen that was found on the vaginal swab collected from Victim One during the sexual assault exam Gee’s DNA also matched the DNA profile from the semen recovered from the paper towel used by Victim Two.

While incarcerated in the Boone County Jail, Gee made several phone calls during which he admitted to robbing the Victims at gunpoint and that he knew the Victims were "whores" and that their job was to provide sexual services in exchange for money. On a call, Gee said, "when they didn’t have any money, I was just like, let’s just f*** and let me leave. After I had them at gunpoint … there was no going back. All the damage was already done." Gee admitted that he owed "hella money," and said, "I was just like,...