Disabled man gets 90 days for sale of son Baby was bartered for $100 and used car

July 09, 1998|By Todd Richissin | Todd Richissin,SUN STAFF

FREDERICK -- A disabled truck driver -- who says his only crime is loving his son -- was sentenced to 90 days in jail yesterday for selling the boy for $100 and a used Plymouth sedan.

The sentence for Kenneth Mark Vogelpohl, 38, ended a wrenching case in which a judge had to weigh whether the boy was put up for sale for his own good or his father's greed. In the end, the judge decided the boy was sold for both reasons.

"That's what makes this sentencing so difficult," said Frederick County Circuit Judge G. Edward Dwyer Jr. "Even the state has conceded the transfer of the child was ultimately in the best interest of the child."

Vogelpohl had been earning a good living driving tractor-trailers until 1994. Then a stroke took his job, and second and third strokes left him unable to find even menial work. He was collecting $100 a month in Social Security disability payments and living in subsidized housing when his son was born Aug. 26, 1996.

The baby was the joy of his life, he told Dwyer. He and his girlfriend, Julie Pilafian, had no doubt what to name the boy: Kenneth Mark Vogelpohl Jr.

"No father will ever love any child as much as I love Kenny, my son," Vogelpohl said as he stood in a dark blue suit before the judge, hands clasped behind his back. "Under no circumstances did I try to sell my son for profit."

Rather, Vogelpohl said, he wanted his son to have a better life, and he asked for the money and the car so that he could relocate. The $100 was a first installment of what Vogelpohl believed would be a $5,000 payment.

Prosecutors said Vogelpohl and the baby's mother did not try to sell their son to strangers, but to the boy's former foster parents, William and Cheryl Gordon.

Shortly after their son was born, Vogelpohl and his girlfriend were forced to give up the boy because they had problems with alcohol. The baby was kept for 10 months by the Gordons, a well-to-do couple from Hagerstown, until the Washington County Department of Social Services returned him to his biological parents shortly before they moved from Hagerstown to Frederick.

Three months later, Vogelpohl phoned the foster parents. He wanted to make a deal: They could have the baby -- for a price.

The foster parents called police. On Nov. 26, with police monitoring the exchange, the Gordons handed Vogelpohl four $20 bills, a $10 bill and two $5 bills, and the title to their 1992 Plymouth. Police arrested Vogelpohl and Pilafian on the spot. She is awaiting trial on charges of selling the boy.

A jury convicted Vogelpohl in May of selling, bartering or trading a child, and conspiracy to sell, barter or trade a child. Public Defender Franklin Stillrich told the judge his client had violated the law.

But, Stillrich added, he did so for the benefit of the boy and not for himself. The attorney asked the judge to reject the recommendation of prosecutors for a jail sentence of at least six months. Vogelpohl had no criminal record until he tried to sell the baby, Stillrich said, and he would be a free man if he had legally given the baby up for adoption.

"What would society have said then?" Stillrich asked. Then, slapping his client on the back, he answered the question: "That's commendable, giving up your son so he could have a better life. What's incontrovertible, your honor, is that's what Mr. Vogelpohl wanted -- a better life for his son."

But Lindell Angel, the assistant state's attorney who prosecuted the case, told the judge that, contrary to Vogelpohl's claims, he knew that what he was doing was wrong. And, she said, greed drove Vogelpohl to "barter" away his son, never questioning what the foster parents' educational and other plans were for him.

"It was the defendant's desire to escape his own problems that drove him to do this," Angel said. "He was more concerned with the car and the money."

She acknowledged Vogelpohl's poor health -- he has artificial heart valves, among other problems -- but said jail time was warranted to send a message that such behavior would be punished.

Dwyer said he doubted Vogelpohl would commit another crime. But, the judge added, the legal principle of general deterrence called for jail time so others would not follow Vogelpohl's route.

"You also bartered with Mr. Gordon," Dwyer said. "You went back and forth on the amounts, and the exchange was for about $8,000 when the market value of the car is taken into account."

State's Attorney Scott Rolle said his office had no choice but to prosecute Vogelpohl.

"This is the only case I can recall where the victim is better off for the crime," Rolle said. "The fact remains, it was a crime."

Vogelpohl is to begin his sentence Monday in the Frederick County Detention Center. He would not talk to reporters after his sentencing but before he left the courtroom he told the judge, "Sir, I live every day in jail in my heart knowing that my life couldn't be much worse."

The child, now almost 2, is in custody of the Gordons, who intend to adopt him.

Pub Date: 7/09/98

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