SJC knocks out sex charge

SJC knocks out sex charge

By Gary V. Murray TELEGRAM & GAZETTE STAFF
gmurray@telegram.com

WORCESTER — The state Supreme Judicial Court has reversed a Shrewsbury man’s 2007 conviction for attempted rape of a child in a case in which a jury found he agreed to pay an undercover police officer $200 to have sex with a 4-year-old girl. In a split decision yesterday, the state’s highest court affirmed Kerry V. Bell’s conviction for offering to engage in sex for a fee, but found there was insufficient evidence to support the attempted child rape conviction. According to testimony at Mr. Bell’s Worcester Superior Court trial, an undercover Worcester police officer posing as a prostitute met with him on March 25, 2004, in a convenience store parking lot and offered to let him have sex with a 4-year-old girl she told him was her foster child in exchange for money. Police Officer Patricia J. Cummings testified that Mr. Bell agreed to pay $200 to have sex with the child after being told the girl was on Elm Street, by Elm Park, and that he could follow her there in his vehicle. Mr. Bell was arrested by other officers as he began to drive out of the parking lot in the direction of the park. On June 19, 2007, Judge Bruce R. Henry sentenced Mr. Bell, now 63, to 4 to 5 years in state prison on the attempted child rape charge and to a concurrent sentence of one year in the House of Correction, the maximum sentence allowed under the law at the time, on the offering to engage in sex for a fee charge. The law was changed after his arrest to allow for a state prison sentence of up to 10 years for soliciting sex with a child under 14. Mr. Bell had prior convictions for similar crimes in other states. In an opinion written by Judge Francis X. Spina, the SJC found that although there was sufficient evidence offered at trial to show that Mr. Bell “intended and prepared for the rape of a child,” the evidence was not sufficient, as a matter of law, “to show that he undertook an overt act that put him so near — in time or ability — to the commission of the crime as to be guilty of attempt.” Distinguishing between actions “merely in preparation” to commit a crime and those that constitute an attempt to carry out a criminal act, the court noted that Mr. Bell was “more than a mile from a vague location” at the time of his arrest, had not paid Officer Cummings any money and “could have decided to return to work and not commit the crime” if he had not been taken into custody. “While the crime of rape of a child is a very grave crime, its commission was still far from certain,” in Mr. Bell’s case, the court said in its ruling. Judge Robert J. Cordy, in a dissenting opinion, said he would have favored affirming both of Mr. Bell’s convictions. He said the evidence in the case established that Mr. Bell “had moved beyond the mere preparation phase” of the crime of attempted child rape and “was on his way to a nearby location to commit the crime.” Judge Ralph D. Gants also dissented. Taking issue with Judge Henry’s instructions to the jury, but not with the sufficiency of the evidence, Judge Gants said he would reverse the attempted child rape conviction, but remand the case to Worcester Superior Court so the prosecution could decide whether it wanted to retry Mr. Bell on the indictment. Judge Roderick L. Ireland joined in both dissents. Mr. Bell still has possession of child pornography and failure to register as a sex offender changes pending in Worcester Superior Court and is being held on a total of $100,000 cash bail of those charges.

http://www.telegram.com/article/20091205/NEWS/912050363/1003/NEWS03