Other Crimes Evidence

in Missouri

By H. Morley Swingle

I. Test for Admissibility

The general rule is that evidence of other crimes committed by the Defendant is not admissible. Other crime evidence can be admissible, however, if it is both logically and legally relevant. It is logically relevant if it reasonably tends to prove a material fact in issue. It is legally relevant if its probative value outweighs its prejudicial effect, in the sound discretion of the court.

The following 7 categories have been recognized by the Missouri Supreme Court as instances where the probative value can outweigh the prejudicial effect, but the Court has made it clear that this list is not exclusive and that the evidence would be admissible in other instances where it is logically relevant and its probative value outweighs its prejudicial effect. See State v. Roberts, 948 S.W.2d 577, 591 (Mo. banc 1997); State v. Skillicorn, 944 S.W.2d 877, 887 (Mo. banc 1997); State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993); Justin M. Dean, "Missouri’s Law on Admissibility of Other Crimes Evidence: Increasing Inclusivity?" 64 J. Mo. Bar 187 (1999).

1. Motive;

EXAMPLE: The defendant was on trial for shooting a St. Louis County Police Officer who had stopped him on a pedestrian check. At the time the officer stopped him, a rape charge was pending against him and he was out on bond with a condition that he remain at home with his parents. The evidence of the pending rape charge and bond condition was admissible because it was relevant to prove the motive to kill the officer. State v. Blackman, 875 S.W.2d 122 (Mo. App. E.D. 1994).

EXAMPLE #2: Defendant is being tried for murder. Evidence is admissible that his motive in doing the murder was to steal the victim’s car to use in a robbery the next day, so the other crime evidence of the subsequent robbery is admissible. State v. Buckles, 636 S.W.2d 914, 918 (Mo. banc 1992).

EXAMPLE #3: Defendant is being tried for the arson of his ex-girlfriend’s apartment. Evidence is admissible that he was mad at her because she broke up with him and cut him off from his supply of illegal drugs, which they had used together. State v. Poe, 857 S.W.2d 419 (Mo. App. E.D. 1993).

2. Intent;

EXAMPLE #1: Recent marijuana sales by defendant and accomplice are admissible in her current prosecution for possessing marijuana and cocaine with intent to distribute. State v. Olivares, 868 S.W.2d 122 (Mo. App. W.D. 1993).

EXAMPLE #2: Defendant is on trial for unlawful merchandising practices for swindling 4 homeowners by falsely claiming their homes needed basement foundation work. Evidence from 4 other victims both before and after the charged crimes (but all within 1 year) was allowed to show defendant’s criminal intent to defraud. State v. Shaw, 847 S.W.2d 768 (Mo. banc 1993).

EXAMPLE #3: In prosecution for possession of burglar’s tools, previous burglary and stealing convictions are admissible to show defendant’s unlawful intent when possessing these items that are normally lawful to possess. State v. Wing, 455 S.W.2d 457 (Mo. 1970) )(certified copies of prior convictions); State v. Frentzel, 717 S.W.2d 862 (Mo. App. S.D. 1996) (informant testimony about prior burglaries); State v. Russ, 602 S.W.2d 485 (Mo. App. E.D. 1980) (certified copies of prior stealing & robbery & burglary convictions admissible).

3. Absence of Mistake or Accident;

EXAMPLE #1: Defendant claimed his shotgun went off accidently and killed his wife. Evidence of his prior beatings of her is admissible to show intent and lack of accident. State v. Danikas, 11 S.W.3d 782 (Mo. App. W.D. 1999); State v. Martinelli, 972 S.W.2d 424 (Mo. App. E.D. 1998).

EXAMPLE #2: Defendant Mother claims the injuries she caused to her child were accidently inflicted. Evidence of prior beatings of child admissible. State v. Candela, 929 S.W.2d 852 (Mo. App. E.D. 1996); State v. Applegate, 668 S.W.2d 624 (Mo. App. S.D. 1984); State v. Letterman, 603 S.W.2d 951 (Mo. App. S.D. 1980).

EXAMPLE #3: Defendant caught going out of store without paying for merchandise claims he accidently forgot to pay. Evidence of prior shoplifting is admissible. Edward J. Imwinkelried, Uncharged Misconduct Evidence, Section 5:11 (1999).

4. A Common Scheme or Plan Embracing the Commission

of Two or More Crimes So Related to Each Other that Proof of One Tends to Establish the Other, By the Fact the Uncharged Crime is Part of a Single Plan that Also Encompasses the Charged Crime or is Part of or Preparation For the Charged Crime;

EXAMPLE #1: Defendant stole the gun he used to commit a murder one month before the murder. Evidence of the theft is admissible in the murder. State v. Kerr, 531 S.W.2d 536 (Mo. App. K.C. 1975).

EXAMPLE #2: The Defendant was convicted of participating in two robberies. Evidence of his involvement in planning a third uncharged robbery was admitted. The robberies were all part of a common scheme where the defendant and his accomplices were robbing Kentucky Fried Chicken restaurants in St. Louis within a 4-month time period. Defendant had worked at all three of the KFC’s, which were owned by the same victim. The defendant drove for two of the robberies, and helped plan the third.

5. Identity.

EXAMPLE #1: Defendant is charged with the murders of two young black boys. Evidence of 10 uncharged murders of other young black boys in the same city during the same time frame is admitted because they are all connected to defendant by hair and fiber evidence and in some instances a victim had been seen with defendant prior to death, and this evidence, had a cumulative effect of establishing defendant’s identity as the killer in the charged offenses. Wayne Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983).

EXAMPLE #2: Defendant is charged with raping a 69-year old woman, a stranger, in her home after he had come to her door asking for a drink of water. The prosecution is also allowed to introduce evidence that after the rape, he forcibly took the victim from her house to an apartment, where he raped her again. The defense at the trial is going to be that the prosecution has the wrong man – identity. Prosecutor is thus allowed to discuss the other crime evidence in opening statement. State v. Mitchell, 491 S.W.2d 292 (Mo. 1973).

EXAMPLE #3: Masked robber always repeats a humorous limerick during robbery. He is caught in the act the third time. All 3 robberies are admissible to establish identity, especially in a trial of one of the earlier ones. Edward J. Imwinkelried, Uncharged Misconduct Evidence Section 3:13 (1999), citing Boardman v. DPP, 60 Crim. App. Rep. 165, 175 (1975).

EXAMPLE #4: Burglar who always left a bathroom scale at the front door of the burgled residence. Imwinkelried, Section 3:13.

EXAMPLE #5: Where issue in trial is identity, testimony of a prior rape victim from a November rape was properly admitted to establish defendant’s identity as perpetrator of this charged February rape because of the similarity of the two attacks. In both cases, defendant dragged a stranger into secluded area, used a knife to scare her, completely disrobed her, and used Vaseline while sodomizing her. State v. McDaniels, 668 S.W. 2d 230 (Mo. App. E.D. 1984). NOTE: Defendant’s offer to stipulate to identity did not remove the issue from the case.

EXAMPLE: #6: Defendant was on trial for rape of one woman. Two other women were allowed to testify that he had attacked each of them in the same way – drove victim to a parking lot and parked so close to another car that she could not get out, then threatened her in similar manner before committing oral sex upon her.)

State v. Young, 661 S.W.2d 637 (Mo. App. E.D. 1983).

6. "Signature Modus/Operandi" Corroboration: Two or More Crimes are So Related to Each Other that Proof of One Tends to Establish the Other, Because the Facts of the Charged and Uncharged Crimes and Their Methodology are Nearly "Identical" and "So Unusual and Distinctive" That They Resemble a "Signature" of the Defendant’s Involvement in Both Crimes;

NOTE: The difference between Identity and Signature Modus/Operandi is that in most signature modus/operandi cases, it is a child sex case and identity is not an issue. The defendant (mother’s boyfriend, etc.) admits he was with the child, but denies the act.

7. Complete & Coherent Picture of Events

Defendant was convicted of a murder of a victim committed during a robbery. Evidence of defendant’s many other crimes committed during a 3-day crime spree (robberies, thefts and murder to get money for crack cocaine) was admissible "to present to the jury a complete and coherent picture of the charged crimes and to rebut defendant’s contention that he lacked the ability to deliberate. . . . Although defendant would have liked to limit the focus of the jury’s attention to only five of the many crimes he committed during the crime spree, those crimes alone would not have fully and fairly presented a complete and coherent picture of the crimes charged and the whole truth to the jury." The court says this is "an additional exception" to the general rule prohibiting evidence of other crimes. "The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes . . . Exceptions to the general rule provide for the admission of evidence that tends to establish motive, intent, the absence of mistake or accident, or a common plan or scheme. An additional exception is recognized for evidence of uncharged crimes that are part of the circumstances or the sequence of event surrounding the offense charged. This evidence is admissible to present a complete and coherent picture of the events that transpired."

State v. Skillicorn, 944 S.W.2d 877 (Mo. banc 1997). Defendant and two companions were hitchhiking after car broke down. They burglarized a home and got guns, then used one of the guns to kill a man who gave them a ride. After the murder they committed a burglary and a robbery while on the run. HELD: Admissible to show that the defendant (who had not been the triggerman) had the mental state of deliberation in his participation in the first degree murder, since if he had not been deliberately involved, he had plenty of opportunity to distance himself from the subsequent crime spree, rather than work as a team.

State v. Kenley, 693 S.W.2d 79 (Mo. banc 1985). Defendant, armed with a gun, robbed a liquor store and kidnaped a female for sexual purposes, and shot her in the back as she fled from his car. An hour later he robbed a tavern and shot a patron to show he meant business and kidnaped a female for sexual purposes, but she got away. Thirty minutes later he robbed a hotel and tried to abduct a woman but was fought off by her husband. HELD: All admissible as part of a common scheme of a "continuing crime spree in which he robbed business establishments and kidnaped women for sexual purposes and is particularly relevant as to his intent and deliberation.

State v. Wacaser, 794 S.W.2d 190 (Mo. Banc 1990). Defendant on trial for stabbing one child to death. He actually killed two at once, both by stabbing, but was going to trial just for one of them. HELD: Evidence of both victims allowed. "The State is entitled to introduce evidence of the circumstances surrounding the offense charged, and the circumstances may include other crimes."

State v. Joos, 966 S.W.2d 349 (Mo. App. S.D. 1998). Defendant is charged with carrying a concealed weapon and resisting arrest. The trial court allowed an officer to testify that the defendant had a reputation for resisting arrest and carrying a concealed weapon in the course of explaining why a large number of officers were used in the arrest. HELD: "Uncharged misconduct evidence is admissible to paint a complete picture of the crimes charged and to explain circumstances that led to the current charges. Evidence is also admissible to explain an officer’s conduct in making an arrest."

8. "RESIDUAL" CATEGORY: Evidence of prior misconduct that does not fall within one of the six enumerated exceptions may nevertheless be admissible if the evidence is logically and legally relevant.

Logical Relevance: The evidence reasonably tends to prove a material fact in issue.

Legal Relevance: The probative value outweighs the prejudicial effect, in the sound discretion of the court.

"The application of the legal relevance doctrine to uncharged misconduct involved four steps.

In the first step, the trial judge assess the proponent’s need for the uncharged misconduct. The trial judge is no longer content that the evidence has bare logical relevance; the judge now analyzes the quantum of probative value of the evidence. The judge considers the weight or strength of the evidence. The judge asks four questions and weights four factors: How clearly has the proponent proven that the defendant committed the uncharged act? (Factor No. 1) How probative of the material fact in issue (identity, the actus reus, or mens rea) is the uncharged misconduct? (Factor No. 2) How seriously disputed is that material fact? (Factor No. 3) And does the proponent have other, less prejudicial evidence available to prove the fact in consequence? (Factor No. 4)"

Edward J. Imwinkelried

Section 8:03 (1999).

II. Can Be Matter of Both Law of Evidence &

Constitutional Law

THE LEGISLATURE’S FIRST ATTEMPT TO MAKE PROPENSITY TO COMMIT SEX CRIMES ALWAYS ADMISSIBLE IF COMMITTED WITHIN 10 YEARS WAS UNSUCCESSFUL. THE 1995 PROPENSITY STATUTE WAS FOUND UNCONSTITUTIONAL IN 1998. THE SUPREME COURT SAID THE TRADITIONAL EXCEPTIONS FOR OTHER CRIME EVIDENCE ARE NOT JUST EVIDENTIARY, BUT ARE A MATTER OF CONSTITUTIONAL LAW.

State v. Burns, 978 S.W.2d 759 (Mo. banc 1998). The Missouri Supreme Court held the 1995 "Propensity" statute unconstitutional. The statute, 566.025, RSMo, had automatically allowed into evidence -- in any sex offense case in which a child under 14 was the victim -- proof that the defendant had committed other offenses upon victims under 14 for the purpose of showing the "propensity of the defendant to commit the crime" charged, provided the previous offenses had occurred within 10 years before the act for which the defendant is being tried. In Burns, the defendant was on trial for performing fellatio on a 7-year-old boy. The prior offense was testimony of a 14-year-old boy that when he was 8 (6 years before the current offense) the defendant had coerced him to perform fellatio on the defendant. Same result: State v. Sales, 984 S.W.2d 183 (Mo. App. W.D. 1998).

Provisions of Missouri Constitution Violated:

Article I, Section 17: "[N]o person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information."

Article I, Section 18(a): "[I]n criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation . . ."

The Court said: "Article I, Sections 17 and 18(a) guarantee a criminal defendant the right to be tried only on the offense charged. Evidence of uncharged crimes, when not properly related to the cause on trial, violates a defendant’s right to be tried for the offense for which he is indicted . . . Although more recent cases do not cite to the constitution, the law remains unchanged. Evidence of prior misconduct of the defendant, although not admissible to show propensity, is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial, and if the evidence is logically relevant, in that its probative value outweighs its prejudicial effect."

NOTE: The legislature has tried again! The new "Propensity" statute, also 566.025, RSMo, effective August 28, 2000, is virtually identical to the old one, but instead of making it mandatory for the trial court to admit evidence of sex acts defendant committed upon other victims, it suggests that the court admit the evidence if the probative value outweighs the prejudicial effect. This additional language should cure the due process problem with the former version of the statute.

II. Specific Crimes

1. Child Sexual Molestation Cases

(1) The same tests apply as for other types of cases.

SIGNATURE MODUS/OPERANDI EXCEPTION ADDED TO TRADITIONAL EXCEPTIONS:

State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993). In Bernard, the Court overruled prior cases and set down the guidelines for when evidence of other uncharged crimes is admissible. This case should be read by every prosecutor and judge in Missouri, since failure to follow it could result in reversals, if evidence that should not have come in is admitted, or could result in letting the guilty go free, if evidence that should have come in is mistakenly prohibited.

The Court reiterates the law that evidence of other uncharged crimes is generally inadmissible. It can be admissible, however, if it is logically and legally relevant to establish: (1) Motive; (2) Intent; (3) The absence of mistake or accident; (4) A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or (5) Identity of the perpetrator. The Court noted that evidence of prior misconduct that does not fall within one of the five enumerated exceptions may nevertheless be admissible if the evidence is logically and legally relevant. In order for it to be admissible under any of the exceptions, the Court must decide that its probative value outweighs its prejudicial effect.

The Bernard case dealt with the common scheme exception. Prior cases had interpreted this exception broadly in cases involving evidence that the defendant had sexually molested other children, and had admitted evidence of other uncharged sexual abuse even when 20 years old. State v. Muthofer, 731 S.W.2d 504 (Mo. App. 1987). One Court decided this was a new exception called the "depraved sexual instinct" exception. State v. Lachterman, 812 S.W.2d 759 (Mo. App. E.D. 1991). Cases had held it was enough just to show that the defendant, just by the fact he kept sexually abusing children, had a common scheme or plan to sexually abuse children under his control. State v. Koster, 684 S.W.2d 488 (Mo. App. 1984). These cases are no longer to be followed.

For the common scheme exception to apply (unless the crimes were part of the same criminal enterprise, in which case they are clearly admissible, e.g. defendant steals a gun in order to rob a bank with it) the Court adopted a "signature modus operandi/corroboration" requirement in order for common scheme evidence to apply. The evidence must be more than merely similar in nature to the crime with which the defendant is charged. Evidence of the prior crime must be so nearly identical to the charged crime and so unusual and distinctive as to be a signature of the defendant’s modus operandi, thereby corroborating the victim’s testimony.

Under the specific facts of Bernard, some of the uncharged misconduct evidence was held to be admissible under this signature modus operandi test, but some was not.

Specifically, the victim was a 14-year-old boy who said his pastor had taken him to a motel and played "strip rummy" with him in which they stripped to their underwear. They then got into a single bed together. During the night the pastor rubbed the victim’s genitals and placed his erect penis against the victim’s genitals. The next morning, the defendant asked the boy to pose for nude photographs, which the boy declined. The defendant also encouraged the boy to take off his clothes and run around the car in his underwear. The boy refused.

The offered evidence of other crimes consisted of the testimony of four other young men, who had been molested by the defendant when each was about 14 and defendant was pastor of their church, several years previously: (1) Andrew, 27 at time of trial, said that defendant had started a "Dare club" where boys would sit naked on the hood of a slow-moving car driven by defendant. Andrew also said that the defendant had held down members of the group and put ice cream topping on their bodies, once putting a small candle in the anus of a boy in the group. Andrew also said that defendant had touched Andrew’s genitals on three occasions, causing defendant to ejaculate, and that defendant kept a set of photographs of nude young men in his desk at work; (2) Bob, 26, testified that he and another boy had gone through an initiation process with defendant whereby they had to jog naked in front of a car driven by defendant. Bob said defendant showed him Polaroid photographs of naked boys Bob knew. Appellant once got into bed with Bob and touched Bob’s genitals; (3) Charles, 25, said that he went through an initiation with defendant whereby boys in the group stripped naked and ran in front of a car driven by defendant. Charles also said male members of the group had to stand on the church pulpit and achieve an erection. The defendant also had boys put ice cream syrup or lotion or ketchup on their genitals. Charles also said that defendant had touched Charles’ genitals; (4) Don, age 25, said that when he attended defendant’s youth group, he went through an initiation where he had to run naked in front of a car driven by defendant. Don also said he and others had to go naked upon a stage in the church and hang tennis shoes from their erect penises. The defendant had them put ice cream topping on their genitals. Defendant tried to get Don to pose for nude photographs, and showed him nude photographs of other boys.

Using its new test, the Bernard Court held that only the testimony about the boys being encouraged to cavort naked around a car driven by defendant was "so unusual and distinctive" as to amount to a "signature" of defendant’s involvement in both the new offense and the old ones. The testimony concerning the sexual activity in connection with the cars would be admissible to corroborate the testimony of the victim. No other evidence from Andrew, Bob, Charles or Don would be admissible.

NOTE: BERNARD DOES NOT APPLY TO PROHIBIT ADMISSION OF UNCHARGED SEXUAL OFFENSES COMMITTED BY DEFENDANT AGAINST SAME VICTIM, AS THESE ARE ADMISSIBLE TO SHOW MOTIVE

State v. Dudley, 880 S.W.2d 580 (Mo. App. E.D. 1994). Defendant is charged with sexually molesting a 10-year-old girl. He was the live-in boyfriend of the mother. At trial, the girl also testified about other sexual acts he had performed upon her in addition to the ones charged. HELD: The Bernard signature/modus operandi exception to other crimes evidence only applies to situations where the other crime evidence is being offered involving activities of the defendant with victims other than the present victim. Evidence of uncharged activity with the same victim is admissible to show motive and does not rely on the Bernard signature/modus operandi exception to be admissible. Same result: State v. George, 921 S.W.2d 638 (Mo. App. S.D. 1996); State v. Jones, 914 S.W.2d 852 (Mo. App. E.D. 1996); State v. McGouirk, 890 S.W.2d 17 (Mo. App. S.D. 1994). But see State v. Phillips, 854 S.W.2d 803 (Mo. App. W.D. 1993). [Attempting to apply Bernard, the Phillips court held that evidence that the defendant had previously engaged in similar conduct with the same victim was inadmissible, totally ignoring cases admitting such evidence to prove motive. Phillips is probably decided incorrectly, particularly in light of the language in Bernard itself that cases have consistently held that evidence of sexual activity between the defendant and a particular victim is admissible to show the relationship between the parties and the defendant’s motive of sexual desire for that particular child. State v. Christeson, 780 S.W.2d 119 (Mo. App. E.D. 1989); State v. Osterloh, 773 S.W.2d 213 (Mo. App. W.D. 1989); State v. Gunter, 715 S.W.2d 576 (Mo. App. S.D. 1986); State v. Graham, 641 S.W.2d 102 (Mo. banc 1982).]

OTHER SIGNATURE MODUS/OPERANDI CHILD MOLESTATION CASES – REMOTENESS IN TIME GOES TO WEIGHT, NOT ADMISSIBILITY.

State v. Coleman, 857 S.W.2d 363 (Mo. App. E.D. 1993). The Court admits evidence that defendant had molested two other victims, when each was 6, about 10 years ago, in defendant’s trial for molesting the current 6-year-old victim. The Court follows Bernard and finds that the defendant’s practice of wetting his fingers while fondling the child’s vagina was his "signature" of his "handiwork" and the testimony of one of the other victims was therefore admissible. The Coleman court refers to Bernard’s signature modus operandi exception as the 6^th exception to the general rule barring evidence of prior uncharged misconduct. It also reaffirms that the remoteness in time of the prior uncharged offenses goes to the weight of the evidence, not its admissibility.

State v. Bird, 854 S.W.2d 807 (Mo. App. W.D. 1993). Citing Bernard, the Court ruled inadmissible evidence that the defendant had molested other boys. The testimony of the molestations of the other boys was virtually identical to the molestation of the victim. The Court held, though, that the conduct was not so unusual and distinctive as to be a signature of the defendant. "It may be sad commentary of society in 1993, but the luring of young boys into a barn with the promises of working on machinery and looking at dirty pictures with the purpose of sodomizing them cannot, under Bernard, be held that unusual or distinctive to support corroborative testimony."

State v. Givens, 851 S.W.2d 754 (Mo. App. E.D. 1993). Purporting to follow Bernard, the appellate court held that the trial court properly admitted evidence of uncharged sexual misconduct between defendant and other child victims. The victim in the present case was defendant’s 11-year-old daughter. The court felt the acts were similar and distinctive enough to uncharged acts committed with two other daughters to qualify as a signature of defendant’s modus operandi. The signature was that defendant: (1) Would come into his daughters’ bedroom at night; (2) Select one of them and pull the victim down to the foot of the bed or onto the floor; (3) Fondle and sexually molest that victim in the presence of the other girls; (4) Physically abuse them if they resisted his efforts; and (5) Threaten to kill them and their mother if they told anyone what he was doing. This was arguably the right result but for the wrong reason. This was really more of a traditional common scheme, not a signature.

State v. Boulware, 923 S.W.2d 402 (Mo. App. W.D. 1996). Defendant is charged with molesting his stepdaughter. Evidence is admitted that in addition to the 4 charged acts, he has been regularly molesting her since she was 5. She is now 14. "Evidence of uncharged sexual conduct with the same victim is admissible to establish motive, intent, absence of mistake or accident, or a common scheme or plan. It can also be used to present a complete and coherent picture of the events that transpired."

EVIDENCE THAT DEFENDANT SHOWED VICTIM SEXUALLY EXPLICIT PHOTOGRAPHS OR SEXUAL DEVICES IS ADMISSIBLE TO SHOW MOTIVE.

State v. Nolan, 717 S.W.2d 573 (Mo. App. S.D. 1986). Defendant was being prosecuted for sexual activity with a girl, age 11. In the course of seducing her, the Defendant had shown her a book depicting sex acts. Defendant, who denied the sex acts, claimed he had just shown her the book for educational purposes and objected that the book was irrelevant and inadmissible. The Court held that book was relevant as it tended to create an atmosphere of "sex consciousness" and demonstrated Defendant's pattern of conduct and preoccupation with sex." It also was relevant for motive because "the jury could reasonably believe that he showed the victim the book to try to persuade her that sexual contacts gave pleasure and were not wrong and thereby make her more receptive."

IN CHILD MOLESTATION CASE, OTHER WITNESS'S TESTIMONY OF DEFENDANT'S NICKNAME FOR HIS PENIS AND FACT HE CARRIED CONDOM IN HIS POCKET IS RELEVANT TO CORROBORATE VICTIM'S TESTIMONY AND TO SHOW COMPLETE AND COHERENT PICTURE OF EVENTS.

State v. Baker, ___ S.W.3d ___ (Mo. App. ED76635 5/30/2000). Defendant was police officer being prosecuted for statutory sodomy with a 15-year-old female intern during police ride-alongs. The victim testified that Defendant had once pulled a condom out of his pocket during one of the ride-alongs while discussing sex with her. She also testified that he had told her of a nickname his ex-wife had for his penis. Over objection, another officer was allowed to testify that Defendant during this same time frame had pulled a condom from his pocket and told the officer that he might have to send him home early because he was having a "ride-along" that night. The officer also testified about Defendant's nickname for his penis. Defendant claims the other officer's testimony was irrelevant and amounted to improper evidence of "bad acts." HELD: Assuming these matters were "bad acts," they were relevant and admissible as to Defendant's motive and to give "a complete and coherent picture of the sexual relationship" between the intern and the Defendant. The evidence corroborated her testimony and was relevant to show his efforts to "create an atmosphere of sex consciousness" that enabled him to pursue the sexual activity with this juvenile.

(2). Related Issue: Joinder of Counts Pertaining to Different Victims in Child Molestation Case.

The Missouri Supreme Court, however, citing Rules 23.05 and 24.07, held that all offenses of the same or similar character may be charged in the same information and "severance of jointly charged offenses is not mandated because evidence relating to one count would not be admissible in the trial of a second count if the two were tried separately." Where a motion for severance is filed, the defendant must show substantial prejudice and the court must find the existence of bias or discrimination in order to sever. Since all of these counts involved illicit sexual conduct toward minors, they were properly joined. In deciding whether substantial prejudice would exist in trying them together, the court should consider "the number of offenses charged, the complexity of the evidence offered, and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense." The Court noted: "A relevant factor in the determination of prejudice is whether evidence of separate crimes would have been inadmissible propensity evidence had the two crimes not been joined. However, even where the evidence would not be admissible if the charges are tried separately, any prejudice may be overcome where the evidence with regard to each crime is sufficiently simple and distinct to mitigate the risks of joinder.

HELD: The trial court properly refused to sever the counts against different victims for different trials. However, the conviction is reversed for another reason: the improper admission of uncharged misconduct evidence under Bernard.

State v. Meder, 870 S.W.2d 824 (Mo. App. W.D. 1993). Defendant was charged in three separate counts with sexually abusing each of his three daughters who were between the ages of 3 and 5 at the time of the abuse, all of which occurred in October of 1986. The defendant claims the court erred by not granting his motion to sever each count for a separate trial. HELD: The counts were properly joined since they were of the same or similar character. Thus, they should be tried together under Rule 24.07 unless the court finds that the defendant made a particularized showing of substantial prejudice. Meder "was not entitled to severance [merely] because the evidence of the rape of any two daughters might not otherwise be admissible at the trial of the rape of the remaining daughter. The trial court’s denial of Meder’s motion to sever was not an abuse of its discretion."

2. Assaults & Harassment

EVIDENCE OF DEFENDANT'S PRIOR DOMESTIC ABUSE OF VICTIM WAS PROPERLY ADMITTED TO SHOW HIS INTENT AND MOTIVE IN HIS TRIAL FOR KIDNAPING HER.

State v. Jacobs, 939 S.W.2d 7 (Mo. App. W.D. 1997). Defendant is on trial for kidnaping Delois Cavil, his former live-in girlfriend, on June 4, 1994. She had been on the way to the zoo with her young daughter and three friends. The Defendant began following her car, ultimately approaching her with a gun, demanding that she explain why she had ended their relationship. The prosecutor was allowed to introduce, over Defendant's objection, evidence that during the 5 year relationship of Defendant and Cavil, he had verbally and physically abused her, beginning in 1990. In once incident, he fractured her rib; in another (in 1993) he beat her with fists, a broomstick, a television stand, and choked her with a television cable. Photographs of her prior injuries from these incidents were admitted. HELD: The evidence of the prior assaults was admissible to show the Defendant's motive, his animus toward the victim and his desire to injure her. The probative value of this evidence outweighed its prejudicial effect. Same result: State v. McCracken, 948 S.W.2d 710 (Mo. App. W.D. 1997).

PRIOR ASSAULTS OF THIS SAME ASSAULT VICTIM CAN BE ADMISSIBLE TO SHOW THE ANIMUS OF THE DEFENDANT TOWARD THE VICTIM AND THUS HIS MOTIVE.

State v. Smotherton, 993 S.W.2d 525 (Mo. App. S.D. 1999). Defendant, the estranged husband of the victim, came to her house, barricaded the front door, and used a chain saw to get through the back door, then shot her with a gun. At trial, he claims she shot first. Victim testifies that Defendant had been abusive to her about twice a year during their 26-year marriage. HELD: Although other crime evidence is generally inadmissible, "evidence of the past abusive behavior . . . was permissible to show Defendant's animus toward victim and his motive to injure her ... the evidence of prior domestic abuse tended to establish defendant's intent and motive to commit the crimes charged."

EVIDENCE OF DEFENDANT'S PRIOR DOMESTIC ABUSE OF VICTIM SHOULD NOT HAVE BEEN ADMITTED IN A CASE WHERE DEFENDANT HAS CONFESSED THAT HE ATTACKED VICTIM IN THE PRESENT CASE AND WAS CHOKING HER AND THUS MOTIVE WAS NOT REALLY AN ISSUE.

State v. Wallace, 943 S.W.2d 721 (Mo. App. W.D. 1997). Defendant and his live-in girlfriend of 10 years had split up. Defendant came back to the house one evening a few days later and came into the house. Victim and her sister were watching a movie. Defendant lay down in the bedroom. Victim went in to the bedroom and spoke to him. He knelt before her and asked if it was really over. She assured him it was. He then began choking her. The sister came running and saw Defendant straddling her and choking her. Victim lost consciousness. The sister grabbed a gun and shot at Defendant. He charged the sister and she shot him in the shoulder. He ended up wrestling the gun from her, but did not use it on anyone. Rather, he went to the hospital, and ended up confessing fully to deputies. The prosecution offered evidence of five prior assaults by the Defendant upon the victim, including a tape-recording of one of them. HELD: Generally speaking, evidence of prior bad acts is logically relevant if it tends to establish (1) Motive; (2) Intent; (3) Absence of mistake or accident; (4) Common scheme or plan; or (5) Identity. "The prior acts of abuse presented by the State tend to show [Defendant] has intended harm to [Victim] in the past, which might be logically relevant to discredit any assertion by [Defendant] of accident or self-defense. However, [Defendant] never claimed accident or self-defense. He never denied attacking [Victim]. Evidence of bad acts or uncharged crimes is only admissible "if it is highly relevant to an legitimate issue in the case." Reversed and remanded for new trial.

EVIDENCE OF DEFENDANT'S PRIOR ABUSE OF VICTIM ADMISSIBLE IN HIS TRIAL OF VIOLATION OF A FULL ORDER OF PROTECTION.

State v. Andrich, 943 S.W.2d 841 (Mo. App. E.D. 1997). Defendant was being prosecuted for violating a full order of protection for tailgating his ex-wife bumper-to-bumper for about 2 miles on November 16, 1994. The prosecutor was allowed to admit evidence of Defendant's prior abuse of the victim, including: (1) That he physically abused her in 1991; (2) That he made harassing phone calls and wrote harassing letters to her; (3) That he wrote "Child Ransom" on his child support checks; (4) That he would touch her at their son's football games; (5) That he made threats to her to try to get her to drop the charges; (6) That he would frequently follow her in his truck; and (7) That he jumped into her car and threatened her after following her. HELD: The evidence of the prior acts shows Defendant's intent to inflict injury on victim, and also arguably demonstrates the absence of mistake or accident. The evidence was not more prejudicial than probative. "In adult abuse cases, a defendant's history of threatening or violent conduct involving the same victim can be especially probative. Considered in isolation, a defendant's outward conduct may be ambiguous or entirely lawful. Only by showing that history can the state establish the justifiable inference that defendant's charged conduct was in fact intended to engender fear on the part of the victim and that defendant knew that it was likely to do so." Defendant's hostility toward and intent to injure victim were contested issues. Conviction affirmed.

EVIDENCE THAT DEFENDANT MADE OTHER UNCHARGED HARASSING TELEPHONE CALLS TO VICTIM WAS ADMISSIBLE TO SHOW HIS INTENT TO DISTURB VICTIM.

State v. Rafaeli, 905 S.W.2d 516 (Mo. App. E.D. 1995). Defendant was convicted of making harassing telephone calls to victim. Evidence of uncharged repeated prior harassing calls to this same victim was admitted. Defendant had repeatedly contacted her from 1989 to 1992, even after she told him to quit and changed her phone number and made it unlisted. HELD: This evidence of other crimes was admissible because the telephone harassment statute requires proof of a specific intent to frighten or disturb the victim. Thus, the prior telephone calls from Defendant to victim and her repeated requests for him to stop were all admissible to show his intent to disturb her.

SOME OTHER ASSAULT CASES:

State v. Carter, 847 S.W.2d 941 (Mo. App. E.D. 1993). Victim’s testimony that defendant hit her when they were living together was relevant and admissible in his prosecution for burglary to establish his motive for kicking in the door of the house at which she was staying after their estrangement.

State v. Williams, 865 S.W.2d 794 (Mo. App. S.D. 1993). Defendant’s prior mistreatment of 3-year-old step-son is admissible in defendant’s murder trial for the beating death of the child. The signature modus/operandi exception is not utilized since the prior mistreatment was directed at this same victim.

State v. Martinelli, 972 S.W.2d 424 (Mo. App. E.D. 1998). Defendant claimed his shotgun went off accidently and killed his wife. Evidence of his prior beatings of her is admissible to show intent and lack of accident. See also State v. Danikas, 11 S.W.3d 782 (Mo. App. W.D. 1999);

State v. Post, 901 S.W.2d 231 (Mo. App. E.D. 1995). Isolated incidents of abuse, particularly ones remote in time, are not relevant in case in which alleged abuser is charged with murder of the abuse victim.

State v. Dunson, 979 S.W.2d 237 (Mo. App. W.D. 1998). Evidence that defendant had previously locked 7 young children in unheated house when accidental fire almost killed them was not relevant to issue of whether defendant committed child abuse in present prosecution for hitting and whipping children.

State v. Blackman, 875 S.W.2d 122 (Mo. App. E.D. 1994). The defendant was on trial for shooting a St. Louis County Police Officer who had stopped him on a pedestrian check. At the time the officer stopped him, a rape charge was pending against him and he was out on bond with a condition that he remain at home with his parents. The evidence of the pending rape charge and bond condition was admissible because it was relevant to prove the motive to kill the officer.

State v. Mallet, 732 S.W.2d 526 (Mo. banc 1987). Defendant was being prosecuted for shooting and killing a Missouri State Trooper who had pulled him over for speeding. Evidence that defendant was on the run for robberies committed in Texas was admissible to prove his motive for killing the trooper.

State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954). Defendant had killed a hotel clerk during a robbery by shooting him with a luger. Two hours later he committed another robbery with the same luger but was caught in the act by police and surrendered. He was not charged with the second robbery. Ballistics proved the gun was the same one used in the murder. Defendant confessed, so identity was not really an issue. Thus, it was error to put in all of the facts about the second uncharged robbery. The judge should have limited the facts of the second robbery to the police finding the defendant two hours later and his possession of the gun at the time.

3. Drugs

WHEN KNOWLEDGE OF NATURE AND CHARACTER OF THE SUBSTANCE IS AT ISSUE, EVIDENCE OF DEFENDANT’S INVOLVEMENT WITH OTHER DRUGS IS ADMISSIBLE.

State v. Vega, 875 S.W.2d 216 (Mo. App. E.D. 1994). Defendant was being prosecuted for possession of cocaine found in a black pouch hidden on his person. It was discovered on him because he was present on the premises of someone else’s apartment when a search warrant was being executed. His admissions that he had gotten the drugs form Rachel Cordova, his "main supplier," were introduced. He claims this was improper evidence of other crimes (other possessions). HELD: "Where knowledge and character of substance is at issue, evidence of involvement with other drugs is admissible to show intent and knowledge of nature of substance possessed."

State v. Crawford, 914 S.W.2d 390 (Mo. App. E.D. 1996). Defendant was convicted of the sale of cocaine to an undercover agent. Later on the same night as the sale the police executed a search warrant at the house where the sale took place and found the defendant hiding in the basement. Nearby, two bottles of crack cocaine were found hidden in a drain pipe. HELD: The uncharged constructive possession of cocaine is admissible to show the defendant's knowledge that what he was selling was indeed crack cocaine.

State v. Gola, 870 S.W.2d 861 (Mo. App. W.D. 1993). Defendant was being tried for two counts of selling crack cocaine. When he was arrested at his home later that night, 127 pieces of crack cocaine were found within four feet of him. He was not specifically charged with possessing those 127 pieces, but the fact they were next to him when he was arrested was admissible to show his knowledge that the white rocks he was selling were crack cocaine.

State v. Davis, 806 S.W.2d 441 (Mo. App. E.D. 1991). In drug possession case, evidence that police officers saw defendant exchange items with other persons on the street (in what looked like drug deal) within an hour prior to his arrest established the res gestae of the crime with which he was charged.

State v. Allen, 856 S.W.2d 676 (Mo. App. E.D. 1993). Evidence of uncharged marijuana found in defendant’s purse at the time of her arrest with LSD was admissible to show defendant’s possession of LSD was intentional and knowing. It was logically and legally relevant to show defendant possessed the LSD with full knowledge of its illegal character.

State v. Rose, 727 S.W.2d 919 (Mo. App. W.D. 1987). In cocaine sale case, trial court did not abuse its discretion in admitting proof of cocaine sale 5 days earlier, deeming its relevancy to outweigh the possible prejudice to defendant. It was relevant to show defendant was acting knowingly in concert with an accomplice making the sale. Defendant had offered an innocent explanation for his presence at the scene of the charged crime.

THE PRIOR DRUG INVOLVEMENT CAN BE TOO REMOTE IN TIME TO BE ADMISSIBLE.

State v. Dudley, 912 S.W.2d 525 (Mo. App. W.D. 1995). The defendant was caught with codeine pills and marijuana in his pocket. He was only charged with the felony codeine count. Evidence of the marijuana was properly admitted over objection because evidence of defendant's involvement or connection with other drugs at the same time he possessed the substance in question has been held to be admissible to show his requisite intent and knowledge of the nature of the substance possessed. However, it was improper to admit evidence that defendant had been convicted ten years previously of sale of codeine because its prejudicial effect outweighs its probative value and thus, although the prior conviction had logical relevance, it did not have legal relevance. NOTE: Generally the remoteness in time goes to the weight and not the admissibility of the prior crimes. See State v. Shaw, 847 S.W.2d 768 (Mo. banc 1993).

SOMETIMES THE PREJUDICIAL EFFECT CAN OUTWEIGH THE PROBATIVE VALUE.

State v. Blackmon, 941 S.W.2d 526 (Mo. App. E.D. 1997). Defendant was convicted of second degree drug trafficking for possessing three containers of PCP in her home. At trial, the State presented evidence in its case in chief, over Defendant's objection, that Defendant had pled guilty to possession of PCP in 1989, and had been found guilty by a jury of trafficking in PCP in 1992. HELD: Reversed. The trial court had admitted the evidence on the ground that it proved Defendant's knowledge, which was an element of the crime. Clearly, the evidence was logically relevant. However, in order to be admissible, evidence of other crimes must also be legally relevant, which is determined by weighing its probative value against its prejudicial effect. In this case, the evidence of the prior convictions added little probative value, since there was strong circumstantial evidence of Defendant's guilt, in that she was the only person at home with the PCP, the house smelled strongly of PCP, she had cocaine out in the open in her bedroom, and she did not open the door willingly for the police, who eventually forced in the door. The prejudicial effect, on the other hand, was "quite strong." Thus, the admission of the evidence was improper. Reversed and remanded.

State v. Reed, 447 S.W.2d 533 (Mo. 1969). Proof of uncharged prior sale of marijuana 2 days earlier was inadmissible where such proof did not prove any material fact in issue concerning the subsequent sale forming the basis of the charge since it was not relevant to prove identity, nor did it show acts so related to each other to establish the latter sale, nor was an explanation needed to indicate motive or intent.

IN CASE WHERE DEFENDANT IS CHARGED WITH ONE SALE OF COCAINE TO INFORMANT, IT WAS IMPROPER TO ALLOW THE INFORMANT TO TESTIFY ABOUT 8 OTHER UNCHARGED BUYS DURING THE PRECEDING TWO WEEKS.

State v. Parker, 988 S.W.2d 93 (Mo. App. S.D. 1999). Defendant is on trial for one sale of cocaine to an informant. The informant was allowed over objection to testify about 8 other uncharged cocaine buys made from defendant during the 2 preceding weeks. HELD: The appellate court calls the current state of other crimes law "bewildering" and "vexing" and notes that it "defies succinct exposition." Generally, evidence of uncharged crimes is inadmissible for the purpose of showing the propensity of the defendant to commit such crime, but there are exceptions to the rule, when such evidence would establish: (1) Motive; (2) Intent; (3) Absence of mistake or accident; (4) Common scheme or plan; or (5) Identity. Also, evidence of prior misconduct that does not fall within one of the enumerated exceptions may nevertheless be admissible if the evidence is logically and legally relevant. It is legally relevant when its probative value outweighs its prejudicial effect. In the present case, the prejudicial effect outweighs the probative value, especially since the defendant offered no evidence.

State v. Aye, 927 S.W.2d 951 (Mo. App. E.D. 1996). Where defendant’s knowledge of cocaine was not in controversy since he testified that he knew what it was, but that the police had planted it, details of his prior drug convictions may have been logically relevant but were not legally relevant since their prejudicial effect outweighed their probative value. It was thus improper for the prosecutor to go beyond the facts of nature, date, place and sentences while cross-examining him about his prior convictions.

DEFENDANT’S POSSESSION OF SOME MARIJUANA WAS ADMISSIBLE IN HIS PROSECUTION FOR POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE.

State v. Dennis, 990 S.W.2d 78 (Mo. App. W.D. 1999). Defendant is on trial for possession of methamphetamine with intent to distribute. The State offers evidence of three sales of meth done by defendant during the week preceding the execution of a search warrant. During the execution methamphetamine and a small amount of marijuana was found. The defense claims the evidence of defendant’s possession of marijuana should not have been admitted. HELD: This other crime evidence is admissible since it is probative of the element of intent, which the State was obligated to prove. "It gives rise to an inference that defendant was involved or connected with other illegal drugs when he possessed the methamphetamine." Its probative value outweighs its prejudicial effect.

State v. Olivares, 868 S.W.2d 122 (Mo. App. W.D. 1993). Defendant is being prosecuted for possession of drugs with intent to distribute. Evidence that defendant sold drugs of same type and packaging to undercover officer 5 days before is admissible to show defendant’s intent to distribute the drugs in his possession.

IN DRUG POSSESSION CASE, EVIDENCE THAT DEFENDANT CARRIED A BEEPER AND CASH AT SAME TIME OF HIS ARREST WHILE POSSESSING THE DRUGS IS ADMISSIBLE.

State v. Flenoid, 838 S.W.2d 462 (Mo. App. E.D. 1992). Defendant had a beeper and cash on him at the time he was arrested for possession of cocaine. This evidence is admissible as a part of the "res gestae" of the crime being tried.

State v. Yahne, 943 S.W.2d 741 (Mo. App. W.D. 1997). In prosecution for possession of methamphetamine, evidence of drug paraphernalia and $140,000 in cash found on defendant’s property was admissible to show his knowledge and intent regarding the possession of the meth.

IN DRUG SALE CASE, REFERENCES TO OTHER SALES MADE BY DEFENDANT DURING PURCHASE ARE ADMISSIBLE.

State v. Hobbs, 687 S.W.2d 634 (Mo. App. S.D. 1985). In prosecution for selling controlled substances, discussion of past and proposed sales of controlled substances contemporaneously with the sale of the controlled substance is admissible to prove intent on the part of the defendant to sell controlled substances and demonstrated that his motive was profit. Same result: State v. Meister, 630 S.W.2d 605 (Mo. App. S.D. 1982); State v. Felkins, 599 S.W.2d 955 (Mo. App. S.D. 1980).

4. Robbery

State v. Neil, 869 S.W.2d 734 (Mo. App. E.D. 1993). The Defendant was convicted of participating in two robberies. Evidence of his involvement in planning a third uncharged robbery was admitted. The robberies were all part of a common scheme where the defendant and his accomplices were robbing Kentucky Fried Chicken restaurants in St. Louis within a 4-month time period. Defendant had worked at all three of the KFC’s, which were owned by the same victim. The defendant drove for two of the robberies, and helped plan the third. The Court refused to apply Bernard to limit other crime evidence by requiring a "signature" requirement in this robbery prosecution, stating that Bernard did not do away with the other normal exceptions.

State v. Clay, 868 S.W.2d 516 (Mo. App. E.D. 1985). Trial court did not err in allowing evidence regarding defendant’s participation in later robbery of another restaurant, where both robberies involved restaurants in south St. Louis, both involved a robber who placed an identical order for tacos & fries, displayed a handgun, and demanded money, and both involved the same weapon.

State v. Perry, 689 S.W.2d 1231 (Mo. App. W.D. 1985). Defendant had used a handgun to rob a prostitute on the street, then fled in a car. The car was stopped the same evening. Defendant was the front seat passenger. It was someone else’s car. A shotgun was found wrapped in a blanket in the back seat. HELD: Since the testimony indicated that a handgun was used, this shotgun was unconnected to the robbery and it was error to admit evidence about it.

State v. Pennington, ___ S.W.3d ___ (Mo. App. WD57262 5/2/2000). Defendant was in the process of stealing cases of soda by loading them into the trunk of his car when the assistant manager of the store pulled up behind him in a car and blocked his means of escape. The Defendant went to the passenger side of the manager's car with a box cutter and threatened him. The manager backed away and Defendant drove off. At trial, the manager was allowed to testify that the reason he immediately blocked in the Defendant was that he recognized him as being the person who had twice before stolen soda from the store. HELD: The other crime evidence was inadmissible. It did not fit into any of the exceptions to the general rule of inadmissibility. It did not go to identity because identity was not disputed. Defendant admitted he had been present. Reversed.

5. Burglary

State v. Esposito, 899 S.W.2d 904 (Mo. App. S.D. 1995). Burglaries on the same night of 4 businesses in close proximity along highway were so related that they indicated common scheme or plan embracing the commission of 2 or more crimes so related to each other that proof of one tended to establish the other; evidence admissible even though defendant’s footprints were not found at all of them.

State v. Robinson, 684 S.W.2d 529 (Mo. App. E.D. 1984). Burglary committed later on the same night as the charged burglary was properly admitted in that it tended to establish the identity of the defendant as well as a common scheme or plan and because it was necessary to establish a complete, coherent picture of the earlier burglary for which defendant was on trial.

State v. Perryman, 851 S.W.2d 776 (Mo. App. E.D. 1993). Defendant was caught by victim in the act of burglarizing victim’s home. The victim pulled a gun and told the Defendant to get down on his knees. The defendant refused and they struggled over the victim’s gun. Defendant was shot, but ultimately got the gun after the victim flipped on its safety. After getting the gun, Defendant said, "You’ve had it!" He tried to shoot the victim, but the gun wouldn’t fire. Defendant left with the gun. Another witness testified over objection that later that same night the Defendant pointed a gun at her and told her to drive him somewhere or he would shoot her. The Defendant claims the threat to shoot her was evidence of another crime that should have been excluded. Citing Bernard, the Court held that the Defendant’s threat to shoot her was relevant and admissible as indicative of consciousness and guilt because the purpose of his actions was to avoid arrest. Although this case was pre-Morrow, this would also seem to be admissible under the complete and coherent picture of events exception under Morrow.

State v. Helm, 892 S.W.2d 743 (Mo. App. E.D. 1994). D and co-D were caught inside a building where silent alarm was going off in December, 1991. A window had been opened. They were caught coming out the door. Co-D had a knife and flashlight on him, which were only things yet taken from the building. In voir dire, opening statement, direct and cross-exam, the State mentioned D's two prior burglary convictions from 1981 and March, 1990. State claims the evidence was admissible in case-in-chief on intent exception to rule against evidence of other crimes. HELD: Reversed. The evidence was too remote to fit into intent exception. Although D took stand and testified in this case that he had not entered the building with the intent to steal, but only with the intent to get warm, he might not have taken the stand at all if the State had not already disclosed his priors to the jury. He had the right for the jury not to know about the priors unless he testified.

6. Rape

State v. Bommarito, 856 S.W.2d 680 (Mo. App. E.D. 1993). Fondling and kissing other women on the same night Defendant sexually assaulted victim admissible to show motive and intent.

State v. Mitchell, 491 S.W.2d 292 (Mo. 1973). Defendant is charged with raping a 69-year-old woman, a stranger, in her home after he had come to her door asking for a drink of water. The prosecution is also allowed to introduce evidence that after the rape, he forcibly took the victim from her house to an apartment, where he raped her again. The defense at the trial is going to be that the prosecution has the wrong man – identity. Prosecutor is thus allowed to discuss the other crime evidence in opening statement.

State v. Gilyard, 979 S.W.2d 138 (Mo. banc 1998). Defendant was charged with forcibly raping a 16-year-old girl. During the rape, he bit her cheek until she quit resisting. The State was permitted to offer evidence of defendant’s prior rape of a 19-year-old victim in which he also bit her cheek until she quit resisting. The court holds that this method of biting the face to force the victim to quit resisting was unusual and distinctive enough to constitute a signature modus operandi under Bernard.

State v. Sladek, 835 S.W.2d 308 (Mo. banc 1992). Evidence that dentist defendant had touched breasts of 3 former patients did not tend to prove that he gave this patient victim nitrous oxide in sufficient quantity to disable her and rape her; thus, it should not have been admitted.

State v. Davis, 867 S.W.2d 539 (Mo. App. W.D. 1993). Defendant was being tried for being one of two defendants who raped two girls at once. They had approached the girls and asked them where "Montgomery Street" was, then forced them into the car and drove them out to the woods to rape them. Later that same day, they pulled exactly the same plan with another victim, a female teacher who was walking to her car. The teacher’s testimony about the other crime is allowed because it shows the defendant’s intent. He was claiming the other defendant had coerced him to commit the crime, but her testimony helped refute the claim by showing him as a willing and eager accomplice.

State v. Burgess, 780 S.W.2d 688 (Mo. App. S.D. 1989). In prosecution for rape and sodomy, admission of evidence that defendant had raped another woman 6 years earlier was reversible error; the two crimes lacked that order of similarity that would brand them as acts of defendant and no other. Evidence of the prior rape was not needed to prove identity, motive, intent, mistake or accident, which were not in issue. Nor was this evidence of a common scheme or plan.

7. Stealing

CONFESSION TO PREVIOUS STEALING SCHEME ADMISSIBLE TO SHOW IDENTITY, MOTIVE, AND INTENT.

State v. Rehberg, 919 S.W.2d 543 (Mo. App. W.D. 1995). Defendant went into K-Mart, removed a lamp from its box, put $1,200 worth of plumbing devices in the box, resealed it, and put it back on the shelf. He then left the store and waited in a car while an accomplice went inside and bought the box for the small price of the lamp. At trial, the state offered the testimony of a loss-control manager of K-Mart in Texas, who said that in 1992 he met with Defendant who wanted to become a consultant for K-Mart and claimed he had stolen more than one million dollars in merchandise from K-Mart, Builder's Square, Venture, and other stores by this exact lamp box and accomplice method. HELD: The loss-control officer's testimony about prior, uncharged misconduct is admissible because it meets three of the "exceptions" to the general rule against admitting evidence of unchanged misconduct. It shows identity since the scheme is so unexpected and so unusual. It shows motive and intent. Also, it was not necessary to show the corpus delicti of the uncharged crimes in order for this previous confession to be admissible. Corpus delicti rule only requires proof of corpus delicti of the present crime with which the defendant is charged.

EVIDENCE OF SIMILAR FALSE PROMISES TO VICTIMS IN STEALING BY DECEIT CASES:

State v. Sielfleisch, 884 S.W.2d 422 (Mo. App. E.D. 1994). In stealing by deceit prosecution, intent may be proven by evidence of similar incidents where defendant consistently makes similar promises to victims. Same result: State v. Bagley, 771 S.W.2d 93 (Mo. App. E.D. 1989).

State v. Shaw, 847 S.W.2d 768 (Mo. banc 1993). Defendant is on trial for unlawful merchandising practices for swindling 4 homeowners by falsely claiming their homes needed basement foundation work. Evidence from 4 other victims both before and after the charged crimes (but all within 1 year) was allowed to show defendant’s criminal intent to defraud.

8. Forgery

State v. Goodpaster, 438 S.W.2d 256 (Mo. banc 1969). Admission in prosecution for uttering forged check of second uncharged forged check identical to charged check was proper to show intent to defraud.

9. Arson

State v. Poe, 857 S.W.2d 419 (Mo. App. E.D. 1993). Good case showing that other crime evidence is admissible upon issue of motive. In this case, Defendant’s prior drug use and a prior theft were admissible to show his motive for committing the arson of his girlfriend’s apartment. She broke up with him. She had been using drugs with him daily. He was mad at her for breaking up with him and for cutting off his supply of illegal drugs, which they had been using together. "Wide latitude is generally allowed in the development of evidence of motive. Evidence of other crimes has frequently been admitted to show motive, despite any incidental prejudice to defendant. The evidence of uncharged misconduct establishes defendant’s motive for setting the fire." The Poe Court made it clear that the Bernard "signature" exception did not apply to motive cases and "leaves intact the exception of motive."

10. Bad Checks

State v. Kalagian, 833 S.W.2d 431 (Mo. App. E.D. 1992). Evidence from bank that defendant had numerous other insufficient funds checks in addition to the one charged is admissible to show intent to defraud. Same result: State v. Harris, 913 S.W.2d 348 (Mo. App. E.D. 1995); State v. Mercado, 787 S.W.2d 858 (Mo. App. E.D. 1990); State v. Smiles, 723 S.W.2d 65 (Mo. App. S.D. 1986); State v. Baity, 494 S.W.2d 425 (Mo. App. St. L. 1973).

11. Driving While Revoked

State v. Hurd, 877 S.W.2d 644 (Mo. App. W.D. 1994). Defendant’s waiver of rights and plea of guilty in previous DWI was properly admitted in prosecution for driving while revoked and DWI to prove defendant knew his driver’s license was revoked. The jury did not actually see the exhibits, but rather the trial judge told the jury that the defendant had signed a waiver of rights and plea of guilty form to a 10-point traffic offense, which included an advisement that the conviction would result in a suspension of his driver’s license.

III. NON-SPECIFIC REFERENCES SUCH AS EXISTENCE OF MUG SHOTS OR PROBATION OFFICER OR GOING BACK TO PEN

TESTIMONY ADMISSIBLE THAT DWI DEFENDANT ASKED TROOPER TO GIVE HIM A BREAK SO HE WOULD NOT BE "SENT BACK TO PEN"

State v. Smith, 884 S.W.2d 104 (Mo. App. E.D. 1994). D was convicted of DWI. D had left scene of accident, showered, changed clothes, and returned. As the officer was giving him field sobriety tests and he was failing them miserably, D asked the officer to give him a break because this "would send him back to the pen." HELD: Admissible as showing consciousness of guilt. See also: State v. Boone, 869 S.W.2d 70 (Mo. App. W.D. 1993); McClain v. State, 686 S.W.2d 879 (Mo. App. E.D. 1985) (ad-missible for motive); State v. Perkins, 680 S.W.2d 331 (Mo. App. S.D. 1984).

AN UNRESPONSIVE COMMENT BY A WITNESS REFERRING TO THE FACT DEFENDANT HAD A PAROLE OFFICER DOES NOT REQUIRE A MISTRIAL.

State v. Mackin, 927 S.W.2d 553 (Mo. App. S.D. 1996). Defendant was being tried for kidnaping and armed criminal action for putting a knife to a young woman's neck and trying to get her into a car. Defendant was from Kansas. The prosecutor called a relative of Defendant's to show he was in the area at the time of the crime. The relative talked about how they had been driving on a trip and had stopped at Great Bend. The prosecutor asked, "Did you stay there?" The witness said, "No. We went -- Robert had to get some travel papers from his parole officer." The prosecutor moved right along with, "What happened -- Did you stay anywhere in southwest Missouri?" No further mention was made of a parole officer. Defendant asked for a mistrial, which was denied. HELD: Although evidence of other crimes is inadmissible, "unresponsive voluntary testimony indicating an accused was involved in an offense other than the one for which he is being tried does not mandate a mistrial." When a witness unexpectedly volunteers inadmissible information, the action called for rests in the trial court's discretion. This reference was brief and identified no specific crime. Nor did the prosecutor exploit the remark, but instead quickly steered the witness back to what was relevant.

REFERENCE TO FACT THAT PHOTO OF DEFENDANT USED IN LINEUP CAME FROM "MUG FILE" WHILE UNNECESSARY AND UNFORTUNATE, WAS NOT SO PREJUDICIAL AS TO CALL FOR A MISTRIAL.

State v. Tivis, 933 S.W.2d 843 (Mo. App. W.D. 1996). While officer was testifying about a photo lineup shown to victim, he mentioned that he had obtained Defendant's photograph from a "mug file." Defendant did not object at the time, but on appeal claims it was error for the trial court not to sua sponte declare a mistrial. HELD: The officer's use of the term "mug file" was unnecessary, but the mere fact that a police department previously had on file a photograph of a defendant does not lead to the inference that the defendant committed prior crimes. "While we believe the term 'mug shot' or 'mug file' may carry some unfortunate connotations for some jurors, we are not ready to conclude that the single use of the term 'mug file' in this case was so prejudicial as to require the trial court to declare a mistrial." Same result: State v. Simmons, 939 S.W.2d 487 (Mo. App. W.D. 1997).

ALTHOUGH A REFERENCE TO A "MUG SHOT" DOES NOT AUTOMATICALLY CAUSE REVERSIBLE ERROR, PROSECUTORS SHOULD USE GREATER CARE IN PREPARING WITNESSES TO AVOID THIS REFERENCE.

State v. Rodgers, 3 S.W.3d 818 (Mo. App. W.D. 1999). Defendant was on trial for passing a forged check at a bank, whose surveillance cameras had photographed him. A photo lineup was put together and shown to the bank teller. The officer who prepared the photo lineup made a brief reference to a mug shot of the Defendant. The prosecutor asked, "As a result of having the name, were you able to obtain a recent photograph of Kevin Rogers, the defendant, to utilize further in your investigation?" Answer: "Yes. I'm sorry, we did not have a current mug shot on file. We had . . . " The defendant interrupted with an objection which was overruled. HELD: It was error to overrule the objection because it was improper for the officer to refer to the existence of a mug shot. "We have repeatedly expressed our disapproval of the use of the term 'mug shots.' Nonetheless, we have been reluctant to conclude that this error necessarily connotes the commission of other crimes. Our courts have stated that we are not yet ready to accept, without proof, the notion that jurors are likely to believe that persons whose photographs are on file with the police department have committed other crimes. However, we cannot ignore the obvious that the terms 'mug shot' carry unfortunate connotations for some jurors. Thus, the use of a mug shot as evidence must be examined in light of the facts and circumstances of each case." The court finds that this isolated comment about a mug shot did not connect the Defendant to a specific previous crime and did not prejudice the defendant, even though the trial court's overruling of the objection was erroneous. The court concludes, however: "Our holding is not meant to minimize the long standing rule that, in general, evidence which seeks to demonstrate that the defendant has committed other crimes is inadmissible. The frequency with which the error is raised on appeal suggests that it is prudent for counsel to exercise greater caution in preparation of the state's witnesses, and when questioning police witnesses, about photo line-ups. It is a point of error that is easily avoided and interferes with the orderly and fair trial of cases."

REPEATED REFERENCES TO THE FACT DEFENDANT HAD JUST GOTTEN OUT OF JAIL WERE PREJUDICIAL AND INADMISSIBLE.

State v. Butler, 984 S.W.2d 860 (Mo. App. W.D. 1998). Defendant was being prosecuted for flourishing a knife in an angry or threatening manner at the victim, who was a friend who had recently bonded him out of jail. The prosecution wallowed in the fact the victim had just bonded the ingrate out of jail by asking repeated questions about it. In the victim’s testimony it came up again and again. HELD: Reversed. "Evidence that defendant was in jail was evidence that he had been accused of committing other crimes. For this evidence to be admissible, it had to have some legitimate tendency to prove that defendant committed the crime for which he was on trial, and its probative value must outweigh its prejudicial value . . . The State’s references to defendant’s being in jail, the victim’s bonding him out of jail and defendant’s court date did not have a legitimate tendency to prove that defendant committed the crime for which he was on trial."

IV. ATTEMPTS TO ESCAPE OR AVOID PROSECUTION OR INTIMIDATE WITNESSES

(1) ESCAPES TO AVOID TRIAL ARE ADMISSIBLE.

State v. Sprous, 639 S.W.2d 576 (Mo. 1982). Defendant’s flight or escape from jail is generally admissible in trial of crime for which he was being held to show a consciousness of guilt. See also State v. Hughes, 596 S.W.2d 723 (Mo. banc 1980). Likewise, other crimes committed during that escape also constitute relevant and admissible evidence. State v. Meeks, 659 S.W.2d 306 (Mo. App. E.D. 1983); State v. Thompson, 723 S.W.2d 76 (Mo. App. S.D. 1987).

(2) ATTEMPTS TO THREATEN WITNESSES ARE ADMISSIBLE.

State v. Ford, 623 S.W.2d 574 (Mo. App. E.D. 1981). Testimony that defendant made threats to a witness after the offense and prior to trial is admissible.

(3) ATTEMPTS TO BRIBE WITNESSES ARE ADMISSIBLE.

U.S. v. Dittrich, 100 F.3d 84 (8^th Cir. 1996). Evidence that defendant tried to bribe a witness to testify falsely was admissible at the trial of the underlying offense. Bribing another person to testify falsely "shows consciousness of guilt, a fact relevant to the guilt or innocence of the defendant." Imwinkelried points out that this evidence is logically relevant because of the assumption that the typical, innocent person would not resort to attempted bribery. Uncharged Misconduct Evidence, Section 3:04.

(4) ATTEMPTS TO DESTROY OR TAMPER WITH EVIDENCE ARE ADMISSIBLE.

State v. Hoyel, 534 S.W.2d 266 (Mo. App. 1975). In prosecution for assault with intent to kill, evidence was allowed that defendant had stolen and forged hospital records because they could disprove his alibi; admissible to show his criminal intent.

State v. Turner, 633 S.W.2d 421 (Mo. App. W.D. 1982). In prosecution for murder, where victim had bite mark on her breast, evidence admitted that after State made motion for dental impressions from defendant, he intentionally damaged his teeth. "The spoilation of evidence evinces a consciousness of guilt and is admissible for that reason."

State v. Lockett, 639 S.W.2d 132 (Mo. App. W.D. 1982). Defendant was being prosecuted for robbery. Evidence was admitted that after he was informed that he would be put into a physical lineup scheduled for 5 hours later, he in the meantime shaved his goatee and parted his hair in a different place. HELD: "Alterations or changes made by an accused to his physical appearance subsequent to commission of an offense are indicative of a consciousness of guilt."

(5) ATTEMPTS TO RESIST OR AVOID ARREST ARE ADMISSIBLE.

State v. Crigwell, 907 S.W.2d 303 (Mo. App. W.D. 1995). In burglary prosecution, evidence that defendant stole a car was admissible because he stole it while trying to escape from the police after the burglary for which he is on trial.

(6) USE OF AN ALIAS OR DISGUISE OR FALSE I.D. IS ADMISSIBLE.

U.S. v. Stowell, 947 F.2d 1251 (5^th Cir. 1991). Defendant was one of co-conspirators selling marijuana to an undercover officer. Evidence was admitted that during the negotiations she was going under a false name. HELD: A defendant’s attempt to conceal her identity from an arresting officer by the use of an alias is relevant as proof of consciousness of guilt. See also Imwinkelried, Uncharged Misconduct Evidence, Section 3:04.

V. REFERENCES TO OTHER CRIMES ON UNDERCOVER AUDIO OR VIDEOTAPED CONVERSATIONS WITH DEFENDANT.

The inclusion of uncharged crimes in a confession does not guarantee the admission of those references at the trial for the charged crime. "Most courts hold that the prosecutor must demonstrate either that (1) the uncharged misconduct would be admissible under one of the normal theories for the admission of such misconduct, or (2) the references to the uncharged act are an integral part of the confession, the references are inextricably connected, the references cannot be severed realistically, or (3) the whole confession would be unintelligible without the references to the uncharged misconduct." Imwinkelried, Uncharged Misconduct Evidence, Section 6:25.

State v. Sweeney, 701 S.W.2d 420 (Mo. 1985). Tape-recorded conversation between defendant and undercover detective was admissible in prosecution for receiving stolen property to show intent, notwithstanding fact that tape contained references to other crimes, since references to the other crimes were inextricably woven with evidence of the charged crime. Same result: State v. Luton, 795 S.W.2d 468 (Mo. App. E.D. 1990); State v. Brown, 584 S.W.2d 413 (Mo. App. E.D. 1979); State v. Powell, 595 S.W.2d 13 (Mo. App. E.D. 1979) (editing the tape as defendant requested would have left it so piecemeal and fragmented as to render it useless to the prosecution).

State v. Bellew, 612 S.W.2d 401 (Mo. App. S.D. 1981). Without admitting the whole confession, a connected and intelligible statement of transaction could not have been made nor could a clear understanding thereof be had.

State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997). Defendant beat a woman to death with a hammer to get money for more crack cocaine. It was error not to delete from his videotaped confession an admission that he had burglarized a car dealership several days before the murder. It had no connection to the murder and could easily have been severed from the confession.