State v. Wadsworth

• Decision Date: 30 October 2006
• Docket Number: No. 27388.,27388.
• Citation: 203 S.W.3d 825
• Parties: STATE of Missouri, Plaintiff-Respondent v. Donal R. WADSWORTH, II, Defendant-Appellant.
• Court: Missouri Court of Appeals

203 S.W.3d 825

STATE of Missouri, Plaintiff-Respondent v. Donal R. WADSWORTH, II, Defendant-Appellant.

No. 27388.

Missouri Court of Appeals, Southern District, Division One.

October 30, 2006.

Duane A. Cooper, Evenson, Carlin & Cooper, LLC, Pineville, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.

JOHN E. PARRISH, Judge.

Donal R. Wadsworth, II (defendant) was convicted following a jury trial of seven counts of attempted enticement of a child.¹ §§ 566.151² and 564.011. This court affirms.

Jim Murray works as a detective with the Diamond, Missouri, police department. He concentrates on conducting investigations "[p]atrolling on the internet looking for illegal activity." In March 2004, Detective Murray posted a profile for a 13-year-old girl in a "chat room." He explained, "I go into chat rooms as a 13-year-old girl." The identifying name he gave the persona he created was "Cindy 64840." He posted a picture of a 13-year-old girl in a short skirt as "Cindy."

Detective Murray was contacted in his capacity as Cindy on March 27, 2004, by defendant. Detective Murray explained, "This was an instant messenger which was just between me and him, and at no time did we ever engage in conversation in a chat room. It was simply instant messages due to the fact that he had asked me to add him to my instant messenger."³ Defendant's request to be added to Cindy's instant messenger list identified him as "Sun Shadow Hero." Cindy added Sun Shadow Hero to her instant messenger list.

On March 27, 2004, Cindy "approached [defendant] by way of the instant messenger."⁴ Cindy, in response to Sun Shadow Hero's inquiry, told him she was 13; that she would be 14 in September. He answered that he was "way older"; that he was 44.

Defendant asked Cindy whether she talked with her friends about men. She told him "[t]hat a neighbor guy had come by and rubbed lotion on her while she was sunbathing." That was followed by Cindy telling defendant a sexual story about an encounter between her and a neighbor in which she was molested. Other conversation about what occurred included defendant telling Cindy about his sexual partners, including that "15 is the youngest." The conversation ended with Cindy telling defendant that her mom called and said they needed to go to Neosho.

March 29, 2004 — Count I of the Amended Information

Defendant and Cindy conducted a conversation by instant messenger on March 29, 2004. It concluded at 10:07 p.m. During the communication, Cindy stated that she looked forward to seeing defendant. The following dialogue occurred:

sun_shadow_hero: i hope so

sun_shadow_hero: how will we?

sun_shadow_hero: mall? walmart cindy64840: well, i could ask mom to spend the weekend with some friends.

cindy64680: i do that a lot. . . .

cindy64680: and instead, meet you

sun_shadow_hero: hehe

The message continued with defendant asking Cindy what she would tell anyone who saw her with him and whether she was scared to meet a stranger. They talked about possibly meeting in Joplin. She said she would tell them he was her uncle; that she didn't know a lot of people in Joplin. She asked him if he would want to show her how to have sex. He responded, "[A] movie first." The discussion continued. Defendant explained in detail how they could perform oral sex with one another. After Cindy said her mother had told her to go to bed, he asked about what she was wearing; if she was wearing a bra and her bra size. When she told him she was "not nearly as big as some of the girls at school," he replied, "[B]ut i like small ones." At the end of the message defendant told Cindy, "[G]oodnight sweetie."

April 3, 2004 — Count II of the Amended Information

Defendant sent messages to Cindy on March 31, April 1, and April 3, 2004. The morning of April 3 they had an instant messenger exchange that ended at 11:42 a.m. They discussed classes defendant was taking. Cindy asked about them. He told her he could buy her things like t-shirts or a bikini. They discussed Cindy modeling a bikini for him if she had one. Defendant then asked Cindy about the incident she had told him about previously when a neighbor had put lotion on her. Cindy told him about the neighbor rubbing her, exposing her "boobs." She told of his reaching into her shorts. Defendant replied, "[T]hat makes me hard to think about it." Defendant talked to Cindy about "swimming without clothes on"; "maybe with you."

Defendant talked about how to have oral sex; that he likes to "shoot it in the girl's mouth" and "make her swallow it." He asked if she was "ready fo rit [sic]." She asked what else they could do. He answered, "[I] would love to lick youthere [sic]." He told her that he could get into trouble because she was underage. Cindy told defendant her mother told her lunch was ready. Cindy asked if defendant would "be on later." He told her he might not be but to "message" him. He terminated the message with "byeee sweeite [sic]."

April 4, 2004 — Count III of the Amended Information

Defendant sent messages to Cindy on April 4. He told her he "just missed" her "last night"; that he "was on at 8 and then came back at 11"; that he would be "back on here after 8:30." Later that evening defendant and Cindy had another instant message discussion. He asked her if he would have seen her outside her house if he had driven by. He asked if her house was easy to find. She answered, "[Y]es." He told Cindy he wanted to meet her sometime, "just not sure when or where."

Defendant talked to Cindy about her experience with the neighbor. He said the neighbor "was lucky" and that the thought of doing what the neighbor did excited him. Defendant described what sexual intercourse with her would be like and how he would fondle her breasts. He told her she "sound[ed] ready." Cindy told defendant her mother had "just said to get into bed." Defendant told her, "[G]o to bed and think of me." The message ended at 10:39 p.m.

April 6, 2004 — Count IV of the Amended Information

Defendant sent two messages to Cindy on April 5 and one on April 6 and participated in an instant messaging session April 6. Defendant told Cindy he "missed [her] last night." She answered that she babysat for friends of her mother. Defendant asked if she needed help babysitting, and Cindy asked if he would want to help. Defendant replied that "the kids may be neglected." Defendant asked if Cindy would like to sit on his lap. He told her it would be exciting, and then described what he would do. He told her what would occur if he put his hands up her shirt and asked where he could meet her.

They discussed a location where they might meet on the weekend. Defendant told Cindy he knew she wanted to be on his lap. Cindy asked what defendant would do then. He replied that it depended on whether they had clothes on, telling her "sitting on laps, naked . . . a lot of things can happen." He described in detail what he could do.

After more exchanges, Cindy told defendant she had been told to go to bed. Defendant then asked again about what the neighbor Cindy had told him about had done. Cindy answered saying she "need[ed] to scat." Defendant told Cindy he would be on the computer the next day. The communication ended at 10:18 p.m.

April 8, 2004 — Count VI of the Amended Information

Cindy and defendant had an instant messaging session on April 8. He told her he was not sure if they could see each other on Friday. He suggested they talk on the phone first or maybe see her at the mall or Wal-Mart. He told her he would like to see her but she was young and he could get in a lot of trouble. He explained that "sometimes people get on here,,, [sic] and try to trick people." He said he needed to be comfortable. Defendant told Cindy he could teach her things. She answered that he already had. He then talked about what he would do to the "certain spot" where Cindy had told him the neighbor had rubbed her; that "it makes a girl go crazy."

Defendant asked about where Cindy lived, if it was "close to the carver [sic] place." She described the location and the mobile home where she said she lived. Defendant then gave an address and telephone number and asked if that was it. She asked how he knew. He told her he looked it up on a telephone directory on the internet. He asked when he could call on Saturday. He told her he liked her and would "love to show [her] things." The communication ended at 10:36 p.m. Defendant told Cindy, "[D]ream of me."

April 18, 2004 — Count VII of the Amended Information

Cindy and defendant had another instant messaging meeting April 18. Defendant told Cindy he had been in the Joplin mall that afternoon. He told her that he had bought a necklace. When she said she thought maybe he had a girlfriend, he answered, "[N]ooooooo [sic]." He told her he was single and asked if she liked that. Cindy answered, "[Y]esssss [sic]." Defendant then told Cindy that he had seen the highway exit that led to where he understood her house was. He asked what a boy Cindy knew had done with her. She said they had kissed. He replied that he was jealous. Defendant then told her to imagine being "French kissed" and being touched sexually, describing it as "double penetration." He told Cindy she would moan into his mouth. Defendant again asked where Cindy lived and asked what would happen if he came to her house when everyone was in bed. He then told her of sexual things for her to think about and said that was what he wanted to do.

April 24, 2004 — Count VIII of the Amended Information

Defendant and Cindy continued their e-mail and instant message communications. Defendant sent a message to Cindy on April 19. They exchanged e-mails April 21, 22, 23 and 24. On April 24 they participated in another instant message communication. Defendant told Cindy he would love to see her. They discussed the proximity of the Carver memorial to Cindy's house. Defendant told her he knew where the...