Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable G. Stanley Moore, Circuit Judge.
For Appellant: Amy M. Bartholow, of Columbia, Missouri.
For Respondents: Chris Koster, Attorney General and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.
WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR. JEFFREY W. BATES, J. - Concurs. DANIEL E. SCOTT, J. - Concurs.
WILLIAM W. FRANCIS, JR., C.J./P.J.
A jury convicted Cody N. Doubenmier (" Doubenmier" ) of the unclassified felony of enticement of a child (Count I), in violation of section 566.151; and the class D felony of sexual misconduct (Count II), in violation of section 566.083. Doubenmier was sentenced as a prior offender to eight years for Count I and four years for Count II, to run concurrent with each other and to any other offenses. Doubenmier alleges eight points of trial court error. Finding no merit to Doubenmier's claims, we affirm the judgment of the trial court.
Facts and Procedural Background
Doubenmier contests the sufficiency of the evidence to support his convictions. We review the evidence in the light most favorable to the jury's verdict, rejecting all contrary evidence and inferences. See State v. Newberry, 157 S.W.3d 387, 390 (Mo.App. S.D. 2005).
In November 2011, a fifteen-year-old high school student (" victim" ) received text messages from Doubenmier, who sad that he had gotten victim's phone number from her ex-boyfriend. Victim testified she told her grandmother and mother about the text messages because she " was getting creeped out because he was just really weird while we were texting." Doubenmier texted that he knew victim's father was a cop and that he could get in trouble for talking to her. Doubenmier also sent two pictures of himself to victim--he was shirtless in one of the pictures.
Victim's father, a Camden County deputy sheriff, was told about the texts. Victim's father took victim's phone to John Stephens (" Detective Stephens" ), the assistant chief of detectives for the Camden County Sheriff's Office, and asked his opinion on whether anything should be done. Detective Stephens was concerned about the content of some of the text messages, specifically those where Doubenmier asked victim if she had done things with an older man and if she wanted to spend time with him. Doubenmier's messages also discussed the possibility of meeting victim. Detective Stephens determined the text messages should be investigated and he contacted the State Technical Assistance Team (" STAT" ) in Jefferson City.
Investigator Cory Stoff (" Stoff" ), a 26-year law enforcement veteran, was assigned the case. Stoff conducted undercover operations by posing as a fourteen-year-old girl named Allyson Chambers (" Ally" ). Stoff created a Facebook account for Ally and used pictures of a young-looking female police officer. He used a department-issued cell phone to communicate in the Ally persona.
At the time of the initial phone call between Detective Stephens and Stoff, Doubenmier texted victim and asked if she knew any other girls that might be interested in him. Stoff instructed Detective Stephens to send a response to Doubenmier, from victim's phone, indicating she did not want to talk to Doubenmier any more, but that her friend Ally had seen his picture and thought he was cute. The message included Stoff's cell phone number. Doubenmier contacted Stoff about fifteen minutes after the message was sent.
Stoff, posing as Ally, asked Doubenmier who he was and how old he was. Doubenmier sent a reply message asking Ally where she lived, her age, and what she was looking for. Stoff relayed that information to Doubenmier, and Doubenmier replied that he could get in trouble for talking to her. After exchanging text messages for a few minutes, Doubenmier then asked Ally to send him some sexy pictures. Doubenmier said he would also send pictures, but cautioned Ally the pictures would need to be deleted from their phones so no one would find them. Stoff sent some pictures of the female officer to Doubenmier.
The following day, Doubenmier and Stoff had another exchange of text messages. Doubenmier asked Ally what type of pictures she wanted, and Stoff replied, " [A]ll kinds." Doubenmier responded by saying, " [O]h yea, you can't see my good pics, you're too young, hahaha na just joking." Doubenmier asked Ally if she wanted to see a " bad picture." Stoff replied, " Sure" and Doubenmier sent a picture of a penis. Doubenmier asked Ally if she liked the picture, and said the penis was " seven inches and as big around as a silver dollar[.]" Doubenmier asked Ally if " that would work" and wrote, " [Y]ou want to hold it, don't you."
In subsequent days, Doubenmier sent texts to Ally indicating they should get together. Specifically, he stated that since she had seen his " package" she should come to Camdenton to see him. In one message, Doubenmier stated that if he had the money, he would come to her location and get a motel room.
After Stoff accumulated enough information for an arrest, he contacted Detective Stephens. Detective Stephens then obtained search and arrest warrants for
Doubenmier and Doubenmier was located, arrested, and taken to the Camden County Sheriff's Department where he was read and waived his Miranda rights. Doubenmier initially told Stoff that he was asking victim, whom he described as his friend, to set him up with girls he believed to be in their 20s, but who turned out to be only fifteen-to-seventeen years old. When asked if he remembered sending a picture of a penis to Ally, Doubenmier hesitated for a minute then put his head down and said, " I may have."
At the end of the interview, Stoff asked Doubenmier if he wanted to write out an apology to Ally or her parents, or to the fifteen-year-old girl and her parents. Doubenmier said that he did and Stoff gave him pencil and paper and left the room. Doubenmier knocked on the door a few minutes later and said he did not really want to write an apology. He also said that he had written out a statement and then tore it up and threw it in the trash can. Doubenmier then asked for an attorney, at which point all questioning ceased and Doubenmier was returned to the detention area. Before removing Doubenmier from the interrogation room, Detective Stephens asked Doubenmier if he had everything he wanted to take back with him to the detention area and Doubenmier replied, " [Y]es." Stoff then retrieved Doubenmier's torn-up note from the trash can after Doubenmier was returned to the detention area.
On September 4, 2012, before trial was to commence, a first amended information was filed charging Doubenmier with the felony enticement of a child (Count I), in violation of section 566.151, for the purpose of engaging in sexual conduct with a person less than fifteen years of age; and the class D felony of sexual misconduct involving a child by indecent exposure (Count II), in violation of section 566.083, by knowingly exposing his genitals to a child less than 15 years of age for the purpose of arousing Doubenmier's sexual desire. Doubenmier was also charged as a prior offender.
At trial, victim's parents, Detective Stephens, and Stoff all testified. Stoff confirmed he retrieved Doubenmier's apology note from the trash can in the interrogation room after Doubenmier changed his mind about writing the note and requested an attorney. This testimony, and Doubenmier's apology note, was admitted into evidence without objection.
Michael Gray, an investigator for STAT, whose job it was to examine computers and cell phones for data, testified as to the photos and text messages retrieved from Doubenmier's phone. He confirmed the cell phone he examined belonged to Doubenmier, and also confirmed Stoff's number appeared 200 times " in the chat" he was able to get " from [Doubenmier]'s phone." Doubenmier's cell phone also contained numerous pictures, four of which were marked as exhibits and admitted into evidence.
Following Gray's testimony, the State rested its case. Doubenmier did not testify or present any evidence, but filed a " Motion for Judgment of Acquittal at the Close of State's Evidence." During argument, Doubenmier's counsel contended that in Count I, the State " failed to establish that [Doubenmier] did anything that he did for the purpose of engaging in sexual conduct with a person less than 15 years of age." As to Count II, Doubenmier's counsel argued that there was no evidence or any ...