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«Appellant, Jeffrey Davies appeals his convictions, following a jury trial, of one count of enticement of a child, Section 566.151,1 and two counts of ...»

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In the

Missouri Court of Appeals

Western District

STATE OF MISSOURI, )

)

Respondent, ) WD70910

)

v. ) OPINION FILED:

) December 14, 2010

JEFFREY W. DAVIES, )

)

Appellant. )

Appeal from the Circuit Court of Buchanan County, Missouri

The Honorable Daniel F. Kellogg, Judge Before Division Four: Lisa White Hardwick, Chief Judge, Presiding, Gary D. Witt, Judge and Hadley Grimm, Special Judge Appellant, Jeffrey Davies appeals his convictions, following a jury trial, of one count of enticement of a child, Section 566.151,1 and two counts of attempted statutory sodomy in the first degree, Sections 566.062, 564.011. For the reasons set forth herein, Davies's enticement of a child conviction is amended to attempted enticement of a child, and in all other respects the judgment and sentence of the trial court is affirmed.

1 All statutory references herein are to RSMo Cum. Supp. 2006 unless otherwise noted.

Factual Background Appellant, Jeffrey Davies ("Davies"), was convicted by a jury in the Buchanan County Circuit Court of one count of enticement of a child, Section 566.151, and two counts of attempted statutory sodomy in the first degree, Sections 566.062, 564.011.

Davies was sentenced to five years for enticement and ten years for each of the two attempted statutory sodomy charges. The two ten year sentences were to run concurrently to each other but consecutively to the five year sentence, for a total sentence of fifteen years in prison.

In 2005, the Buchanan County sheriff's department instituted a sting operation whereby the police department with the help of college interns would attempt to catch individuals who would meet underage children on the internet and attempt to meet them in person for sexual purposes. The department used the college interns as decoys who would converse with the would-be perpetrators online until a meeting was arranged.

In June 2006, intern Rachel Schellenberger created a fictitious profile on Yahoo called i_love_candy_92 under the name of "Jaime Jacobs" ("Jaime"). On June 6, 2006, Davies, a twenty-eight year old man, logged in as civil200077 and began chatting with "Jaime" in a chat room named "Toy Box."2 Davies and "Jaime" chatted on a total of four occasions: June 6, 7, 8, and 12. "Jaime's" fictitious profile had her living in St. Joseph, Missouri, and "Jaime" first communicated to Davies that she was fourteen years of age and then subsequently in the same conversation changed her age to thirteen years old.

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"Jaime" she was too young for him, but he then began discussing sexually explicit topics with her such as: whether she was bisexual, her sexual history, masturbation, oral sex, pubic hair, avoiding pregnancy, anal sex, and the type of panties she wears. Davies also told "Jaime" the conversation was making him "horny," and he asked her multiple times on what street she resided.

The second conversation was on June 7, 2006. Davies contacted "Jaime" and offered that if he were in St. Joseph they could hang out, and he asked her whether she would date him if he were younger. Davies asked "Jaime" what she was wearing and whether she was wearing panties and a bra. Davies then inquired as to whether "Jaime" shaves her legs and pubic hair. Finally, Davies told "Jaime," "if you want to learn, we still might be able to mess around sometime."

The third conversation was on June 8, 2006. In that conversation, Davies asked whether he could come over and meet "Jaime" at some time. He attempted to get "Jaime" to tell him her address but she refused. Davies insisted that "Jaime" had nothing to worry about; no one would see him; and if someone came home, he would run out the back door. Davies then attempted to get "Jaime's" telephone number. "Jaime" suggested the two could meet somewhere close to her home, but they did not plan a meeting that day.

Instead, they made plans to chat again later.

The fourth conversation was on June 12, 2006. In that conversation, Davies asked why "Jaime" did not have a boyfriend and how many boys she had kissed. He again

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whether she wanted to meet up that night when he returned from Kansas City.

At this point in the conversation, Davies logged out of the screen name he had been using during the previous conversations and logged back in as saintjoe_guy64506.3 Davies, as saintjoe_guy64506 contacted "Jaime," telling her he was a seventeen year-old male from St. Joseph, Missouri. "Jaime" informed Davies that she was thirteen years old.

Davies asked "Jaime" what she looked like and suggested that they meet up sometime.

Davies asked where "Jaime" lived and inquired into her sexual history. They discussed "Jaime's" relationship with Davies's other online persona, civil200077, and he asked her whether she would have sex with civil200077. He discussed safe sex and condoms with "Jaime," pubic hair, and offered to teach her how to have sex. He told her in graphic terms that he would teach her how to perform oral sex on a man and offered to perform oral sex on her. Also, he told her about anal sex and propositioned her. Davies then arranged to meet with "Jaime" that evening at 6:00 in the Meierhoffer Cemetery. He told her they could "do some sexual stuff in [his] car." Davies told her it would be easier if she wore a skirt. He told her they would have oral sex, fingering, kissing, and could try anal sex if she wanted. Then he suggested they could have sex without a condom but then decided that since she was in a fertile state they should use a condom. He told her he really likes thongs and offered to bring her one. This concluded Davies's conversation with "Jaime" as seventeen year-old saintjoe_guy64506.





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He asked "Jaime" what she had been doing, and "Jaime" informed him that she had been chatting with a new guy on the internet and that she would not be able to meet up with Davies (as civil200077) that evening. Davies inquired as to what "Jaime" would be wearing that evening and offered her advice. He tried to get "Jaime" to tell him exactly what she would be doing when she met up with her other on-line friend, asking her in graphic terms if she was going to perform oral sex on him, whether she would French kiss him and let him perform oral sex on her. This concluded the interactions between Davies and "Jaime" on the internet.

Trooper Brad Ussary and his partner Corporal Roger Phillips set up surveillance at Meierhoffer Cemetery that evening. The surveillance team observed a car matching the description given by Davies to "Jaime" drive slowly past the area where he had agreed to meet "Jaime." The investigators stopped Davies's car and inquired as to what Davies was doing in the cemetery. Davies said he was looking to see whether the tombstones were flat or upright. Davies was then given his Miranda warnings. Investigators again asked Davies what he was doing, and he replied that he wanted to "see what residence the little girl came out of so that he could tell her parents what she was doing." Davies signed a consent for search form which authorized a search of Davies's vehicle. Davies then accompanied investigators to the police station.

At the police station, Davies waived his Miranda rights in writing. He was shown the printouts from each of the chats he had with "Jaime," and Davies initialed each chat transcript, signaling that "he agreed with what was on it as far as his recollection of what

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would cooperate fully. Davies then made a handwritten statement in the form of an apology letter, as this is what was requested by the officer. In this statement, Davies admitted that he changed profiles from civil200077 to stjoe_guy64506 because he hoped she would meet someone who was 17 years old as opposed to 28 years old under his previous profile.

Davies telephoned his wife while at the police station and informed her that he had been arrested for soliciting a minor on the internet. She hung up on him, and he called back a few hours later. She asked how old the minor was and he told her she was thirteen. The following day, after Davies was released, he and his wife had another conversation about the incident where Davies repeated that the minor was thirteen years old.4 Over the objections of Davies, his wife testified at trial about each of the conversations she had with Davies. Davies's invocation of spousal privilege was rejected by the court. Specifically, his wife testified that Davies never denied committing the crime and he did not tell her that he believed "Jamie" to be over the age of eighteen.

Davies testified at trial and admitted he had the conversations with "Jaime" but insisted he never believed "Jaime" was a minor but, rather, believed that they were "role playing" in their internet conversations.

The jury found Davies guilty of one count of child enticement and two counts of attempted first-degree statutory sodomy. The court sentenced Davies to fifteen years in

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In Point One, Davies argues the trial court erred in denying his Motion for Judgment of Acquittal because the evidence adduced at trial was legally insufficient to support his conviction under Count I of Enticement of a Child, because a necessary element of the crime requires that the enticement be of a person under the age of fifteen.

"When a defendant challenges the sufficiency of the evidence to support a conviction, our review is limited to „a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.'" State v. Thompson, 314 S.W.3d 407, 410 (Mo. App. W.D. 2010) (quoting State v. Karl, 270 S.W.3d 514, 515 (Mo. App. W.D. 2008)). "We accept as true all evidence favorable to the State, including all favorable inferences drawn therefrom, and disregard all evidence and inferences to the contrary." Id. (citing Karl, 270 S.W.3d at 515). "'A jury may believe all, some or none of a witness'[s] testimony, and the jury must resolve any contradictions or conflicts in that testimony.'" Id. (quoting State v.

McMellen, 872 S.W.2d 508, 510 (Mo. App. W.D. 1994)).

The crime of Enticement of a Child, Section 566.151.1, for which Davies was convicted, requires that (1) "A person at least twenty-one years of age or older," (2) "persuade[], solicit[], coax[], entice[] or lure[] whether by words, actions or through communication via the Internet or any electronic communication," (3) "any person who is less than fifteen years of age," (4) "for the purpose of engaging in sexual conduct." The

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than fifteen years of age. In the present case, this was a sting operation conducted by the Buchanan County sheriff's department and the person enticed was the online persona of a fictitious thirteen year old girl named "Jaime." The person behind the persona was a twenty-five year old intern named Rachel Schellenberger. None of these facts are disputed.

The State argues that it does not matter that the person on the other end of the computer was fifteen or older because the statute allows for a would-be enticer to be convicted of the crime of Enticement of a Child when there is no child but rather a "peace officer masquerading as a minor."

We must first begin with the language of the statute itself to see if it provides a clear answer as to the question at hand.

In interpreting statutes, this Court ascertains the intent of the legislature from the plain and ordinary language used and, if possible, gives effect to that intent. In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense. This Court may also “review the earlier versions of the law, or examine the whole act..., or consider the problem that the statute was enacted to remedy” to discern legislative intent.

Hayes v. Price, 313 S.W.3d 645, 654 (Mo. banc 2010) (internal citations omitted). The plain language of the crime of Enticement of a Child unequivocally requires that the person enticed be less than fifteen years old. See Section 566.151.1. The State, however, argues that Section 566.151.2 suggests that the legislature intended to create an exception when there is no child under the age of fifteen to create criminal liability when "the other person [is] a peace officer masquerading as a minor." Section 566.151.2 states "[i]t is not

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was a peace officer masquerading as a minor."

A "peace officer" is defined under Missouri law in 590.010(3). Nowhere does that definition include a college intern volunteering part time for a sheriff's department, as was the decoy in this case. Therefore, Section 556.151.2 is of no relevance to this matter, and we need not reach the issue of the application of this provision to a case where a peace officer was in fact the person being "enticed."

Section 566.151.3 prescribes an identical range of penalties for both "[e]nticement of a child" and "an attempt to commit enticement of a child." See Section 566.151.3.

While imprecisely written, context and prior usage indicate that when a person is caught enticing someone he or she believes is a child but who happens to be a police officer or other person masquerading as a child, he is guilty of attempted enticement of a child.

This interpretation is supported by numerous cases with facts analogous to the instant case where a sting operation catches a would-be enticer of a child. See e.g., State v.

Pribble, 285 S.W.3d 310 (Mo. banc 2009); State v. Ward, 235 S.W.3d 71 (Mo. App. S.D.

2007); State v. Wadsworth, 203 S.W.3d 825 (Mo. App. S.D. 2006); State v. Scott, 238 S.W.3d 236 (Mo. App. W.D. 2007)(per curium); State v. Sears, 298 S.W.3d 561 (Mo.

App. E.D. 2009). This is also recognized in previous editions of the MAI in the notes on use to the verdict director for Enticement of a Child, MAI-CR3d 320.37 (2005 supp.).

The notes stated "[i]f the person alleged to have been contacted by the defendant was a

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