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State v. Rice

Court of Appeals of Missouri, Western District, Fourth Division

November 22, 2016

STATE OF MISSOURI, Respondent,
v.
JERRY LEE RICE, Appellant.

         Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Randall R. Jackson, Judge

          Before Mark D. Pfeiffer, Chief Judge, Presiding, Karen King Mitchell, Judge and Gary D. Witt, Judge

          Gary D.Witt, Judge

         Jerry L. Rice ("Rice") appeals from his conviction, following a trial by jury before the Circuit Court of Buchanan County, of one count of attempted enticement of a child, section 566.151, [1] for which he was sentenced as a prior offender to twenty-five years' imprisonment. [2] Rice raises two points on appeal. First, Rice argues the trial court erred in denying his motion for judgment of acquittal and sentencing him for attempted enticement of a child because the State's evidence failed to establish beyond a reasonable doubt that Rice made a substantial step toward the commission of the offense. Second, Rice argues that the trial court abused its discretion in refusing to allow testimony from his expert witness regarding potential factors that could bias child witnesses in forensic interviews. We affirm.

         Factual Background[3]

         In 2013 and 2014, Rice was in a romantic relationship with a woman who was the mother (the "Mother") of an eleven-year-old girl (the "Victim").[4] Rice, for a time, resided in the home of Mother and Victim in St. Joseph, Missouri. Normally, Rice was never left alone with Victim, but Mother had a doctor's appointment in February of 2014 and did not arrive home before the Victim returned from school.

         While Mother was gone, the Victim was reading a book in her living room about sex and anatomy which her mother had given her for educational purposes. Rice saw the book and gave victim a couple of CDs[5] which Rice said would teach her about what was in the book and asked the Victim to watch them. On the CD's were movies of naked people touching themselves and each other and included sexual intercourse. Rice came into the Victim's room while she was changing clothes and then left. He returned while the Victim was watching the movies Rice had given her. On the screen was a woman placing her fingers in her vagina. Rice retrieved a drumstick off the dresser, said that it "would be perfect, " and asked her if she "wanted to know what it felt like" as he pointed to the screen. The Victim responded, "No." Rice told the Victim to lie down. The Victim refused, and Rice left and then returned for a third time. Upon his return, Rice put his arm around the Victim's neck and attempted to kiss her on the lips. The Victim resisted.

         Upon returning home, the Victim told Mother that Rice had shown her dirty movies. The Victim said that people were having sex in the movies. When questioned by Mother, Rice responded that he "showed her some movies, so what." The following day, the Victim reported the incident with the drumstick to her Mother. Mother did not file a police report until a month after this incident because she did not know his conduct was illegal. Mother also never filed a police report regarding an alleged previous incident in which the Victim claimed Rice put his hand down her pants and touched her vagina over her underwear.

         The Victim was interviewed by Detective Dustin Robinson ("Detective Robinson") who is employed in the Family Crimes Division. Detective Robinson is trained as a forensic interviewer to work with children. A recording of the interview was made when the Victim was interviewed at the Child Advocacy Center ("CAC") by Detective Robinson, and the recording was played for the jury. At the time of the incident, the Victim was eleven years of age. At the time of the CAC interview, the Victim was twelve years of age.

         Rice sought to introduce expert testimony from Dr. Matthew Fanetti ("Dr. Fanetti"), a professor of psychology and coordinator of the forensic child psychology certification at Missouri State University. Rice sought to introduce evidence from Dr. Fanetti regarding his research into and development of a protocol for use in the evaluation of forensic child interviews. The protocol he developed, the Protocol for Evaluating Forensic Interviews of Children ("PEFIC"), identifies seventeen biasing factors that could impact a child forensic interview and results in an interview score. Rice sought to elicit testimony from Dr. Fanetti regarding each of the seventeen potential biasing factors and the score he calculated for the interview of the Victim by Detective Robinson.

         At a pretrial hearing on the admissibility of this evidence, the State argued the admission of this evidence would invade the province of the jury. The trial court did not allow the testimony regarding each of the biasing factors and the score developed by Dr. Fanetti for this particular interview. But, the trial court did rule that it would allow testimony from the expert regarding general biases affecting a child's testimony and generally issues with regard to a child's memory and testimony, provided there was a foundation laid that the testimony was applicable to the facts of this case and restricted such that there would be no comment on this child victim's credibility. At trial, Rice did not call Dr. Fanetti to testify in light of the trial court's previous ruling on the limited admissibility of the proposed testimony.

         Analysis

         Point One

         In Point One on appeal, Rice argues that the trial court erred in overruling his motion for judgment of acquittal and in sentencing Rice for attempted enticement of a child because the State's evidence failed to establish beyond a reasonable doubt that showing the Victim a pornographic film and asking her if she wanted to know what it felt like was a substantial step toward persuading, soliciting, coaxing, enticing, or luring her for the purpose of engaging in sexual conduct with him.

         "When an appellant challenges the sufficiency of the evidence to support his convictions, we review that evidence in the light most favorable to the verdict, giving the State the benefit of all reasonable inferences." State v. Blair, 443 S.W.3d 677, 682 (Mo. App. W.D. 2014). "We do not reweigh the evidence, but determine only whether there is sufficient evidence from which a ...


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