330 S.W.3d 775
Mo. Ct. App.2010Background
- Davies was convicted by a jury in Buchanan County of enticement of a child and two counts of attempted statutory sodomy; he was sentenced to 15 years total.
- The case arose from a 2005 sting operation where a decoy 13-year-old girl was engaged online by a college intern posing as Jaime Jacobs.
- Davies chatted with Jaime in multiple conversations, then traveled to a cemetery based on online plans to meet her; he was stopped, arrested, and admitted participating in chats.
- The State introduced transcripts, Davies admitted the chats and claimed he believed Jaime was role-playing and over 18; his wife testified about conversations with Davies.
- The trial court allowed amendments to the information after Davies presented evidence, and Davies challenged various instructions, evidentiary rulings, and the sufficiency of the charges.
- The Western District ultimately amended the enticement conviction to attempted enticement of a child and affirmed the remaining counts, with resentencing not needed due to identical punishment ranges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of enticement of a child as charged | Davies contends evidence failed to prove under 15 element | State argues officer decoy still satisfies statute | Enticement conviction reversed; insufficiency to prove under 15; however, attempted enticement affirmed |
| Sufficiency of attempted enticement and related instruction | Davies argues insufficient for attempted enticement; no explicit substantial-step element | Jury found substantial steps via planned meeting, supports attempt | Conviction for attempted enticement upheld; not prejudicial despite instructional deviation |
| Effect of Fourth Amended Information | Amendment added or changed offenses prejudicial to defense | Amendment did not charge new offenses; substantial rights not prejudiced | Amendment not prejudicial; no new offense charged; defense available both before and after amendment |
| Marital privilege and tacit admission issues | Admission of wife’s testimony about Davies’s denials violated privilege and tacit admission rule | privilege and tacit admission narrow and not clearly violated | Admission of wife's testimony error; not prejudicial given overwhelming evidence; no reversal for tacit admission |
| Alternative grounds for plain-error review and MAI instruction deviations | Unpreserved trial errors should be reviewed for plain error | Errors were harmless or not reversible under plain error standard | Several MAI instruction deviations deemed harmless in light of total evidence and paired verdicts |
Key Cases Cited
- State v. Thompson, 314 S.W.3d 407 (Mo.App. W.D.2010) (sufficiency standard for criminal evidence)
- State v. Karl, 270 S.W.3d 514 (Mo.App. W.D.2008) (resolve how to view conflicting testimony)
- State v. Pribble, 285 S.W.3d 310 (Mo. banc 2009) (sting operation enticement guidance)
- State v. Ward, 235 S.W.3d 71 (Mo.App. S.D.2007) (case on enticement/attempt context)
- State v. Wadsworth, 203 S.W.3d 825 (Mo.App. S.D.2006) (elements of attempting to entice a child)
- State v. Scott, 238 S.W.3d 236 (Mo.App. W.D.2007) (per curiam on enticement/attempts in sting context)
- State v. Sears, 298 S.W.3d 561 (Mo.App. E.D.2009) (instructional considerations in enticement cases)
- State v. Williams, 126 S.W.3d 377 (Mo. banc 2004) (post-trial insufficiency/notice rule guidance)
- State v. Seeler, 316 S.W.3d 920 (Mo. banc 2010) (amendment of information and prejudice analysis)
- State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996) (notice and lesser-included offenses doctrine)