330 S.W.3d 548
Mo. Ct. App.2010Background
- Appellant Eddie Wayne Smith was convicted by jury of enticement of a child (18-566.151) and attempted statutory rape in the first degree (18-564.011, 566.032).
- Evidence showed he, thinking he was communicating with a fourteen-year-old via text messages and undercover police posing as such, enticed and attempted to have sex with the minor.
- Investigators conducted encounters with the decoy as D.P. (a twelve-year-old) and via a detective posing as the minor, including in-person meeting arrangements.
- The jury was told and found that Smith was at least 21 years old and that the victim or decoy was under 15 for enticement and under 14 for statutory rape in the first degree.
- Appellant challenges admission of text messages, a purported variance between information and verdict directives, cell-phone data foundation, and two continuance denials.
- Judgment: affirmed as to enticement conviction, reversed and remanded for entry of conviction on the lesser count of attempted statutory rape in the second degree and related sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there error in admitting the text messages for Count I? | Smith | Smith argues irrelevance to the charge. | No reversible error; messages logically and legally relevant. |
| Did a variance exist between the Amended Information and verdict on Count I? | Smith | No variance for Count I; information gave notice. | No variance for Count I; variance found for Count II only. |
| Was the foundation for the cell phone and text-message records properly laid? | Smith | Foundation adequate via identification and authenticity. | Point III denied; foundation sufficient. |
| Did the trial court abuse its discretion denying continuances? | Smith | Counsel was sufficiently prepared; continuances unnecessary. | No abuse; Point IV denied. |
Key Cases Cited
- State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) (remand to lesser offense when appropriate after conviction for greater offense)
- State v. Ellis, 853 S.W.2d 440 (Mo. App. E.D. 1993) (charging information governs defendant’s notice and defense)
- State v. Madison, 302 S.W.3d 763 (Mo. App. S.D. 2010) (broad discretion in admitting evidence; abuse requires clear error)
- State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981) (lesser offense doctrine under 556.046; context for remand procedure)
- State v. Shipley, 920 S.W.2d 120 (Mo. App. E.D. 1996) (definition and use of lesser included offenses)