State v. BurnsState v. Burns
- Reporters:
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- Before:
- Covington
Appellant Robert Burns appeals his conviction by a jury of first degree statutory sodomy,
Viewed in the light most favorable to the verdict, the evidence shows that in 1995 the victim, a seven-year-old male, lived in the same neighborhood as appellant, who was then seventeen. On June 7, 1995, the victim and his nine-year-old brother were playing
After appellant and the two boys had finished swimming and had gotten dressed, appellant told the victim’s older brother to go up the stream behind some trees. When appellant began to throw rocks at him, the victim’s older brother complied. When the victim’s brother was out of sight, appellant told the victim to pull down his pants. The victim complied, and appellant performed fellatio on the victim. The appellant told the victim to do the same to him, but the victim refused. The victim then screamed that he saw a snake, and his brother emerged from the trees. The two brothers returned home. The victim reported the incident to his father the following day.
At trial, the state was allowed to introduce, over appellant’s objection, the testimony of two witness regarding prior sexual abuse committed by the appellant for which the appellant was never charged. The witnesses were a fourteen-year-old boy and his mother, both of whom had lived in appellant’s neighborhood in 1989 and 1990, when the boy was eight years old. The boy testified that on several occasions appellant coerced him into placing appellant’s penis in his mouth. The boy’s mother testified that she had discovered her son with his mouth on appellant’s penis. The incidents were not reported to the police.
The witnesses had been endorsed pursuant to
In prosecutions under chapter 566 or 568 involving a victim under fourteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he is charged, provided that such evidence involves acts that occurred within ten years before or after the act or acts for which the defendant is being tried.
Appellant challenges the constitutionality of
Article I, sections 17 and 18(a) guarantee a criminal defendant the right to be tried only on the offense charged. The common law of this state with regard to propensity evidence is rooted in article II, sections 12 and 22 of the 1875 Constitution, the predecessors to the present provisions.
State v. Leonard,
182 S.W.2d 548, 551 (Mo.1944);
State v. Harris,
283 Mo. 99, 222 S.W. 420, 423-24 (Mo.1920),
overruled on other grounds, State v. Cason,
252 S.W. 688 (Mo.1923). 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.
State v. Holbert,
416 S.W.2d 129, 132 (Mo.1967). The admission of uncharged
Although more recent cases do not cite to the constitution, the law remains unchanged. The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (Mo. banc 1954). This Court has recognized that showing the defendant’s propensity to commit a given crime is not a proper purpose for admitting evidence, because such evidence “may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.” State v. Bernard, 849 S.W.2d 10, 16 (Mo.1993).
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 legally relevant, in that its probative value outweighs its prejudicial effect. Bernard, 849 S.W.2d at 13.
Conceding that the constitutionality of
The state also argues that
Despite the long line of Missouri eases declaring that the admission of evidence to prove propensity violates the defendant’s right to be tried only for the offense charged, many of which plainly cite the Missouri constitution (see supra), the state argues that the general rule barring evidence of other crimes is not a constitutional prohibition, but rather is evidentiary in nature. The state claims that Missouri precedent can be traced back to State v. Spray, 174 Mo. 569, 74 S.W. 846 (Mo.1903), and People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (N.Y.1901), which the state claims did not link the exclusion of uncharged offenses to any constitutional provision.
The state’s contention is without merit. Although the court in Spray did not cite to the Missouri Constitution, the Spray decision was clearly based upon the defendant’s right to be tried only for the offense charged. In explaining its decision, the Spray court stated, “Defendant was only required to meet the charge ... in the indictment, and he is not required to, nor is he presumed to know that he will have to, meet and repel testimony as to a separate and distinct offense. This is loading him with a burden that the law does not sanction.” Spray, 74 S.W. at 851. Likewise, the Molineux decision is of no assistance. The New York Court of Appeals holds that “the state cannot prove against a defendant any crime not alleged in the indictment, either as foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged.” Molineux, 61 N.E. at 293. This is precisely what the Missouri Constitution prohibits.
In sum, this Court holds that
In addition to his constitutional challenge, appellant asserts two other points of error. First, appellant asserts that the trial court erred in overruling appellant’s request for a mistrial when a witness for the prosecution testified as to his opinion of the victim’s truthfulness. The state concedes error. The error is unlikely to recur on retrial. Finally, appellant asserts that the trial court erz’ed in failing to instruct the jury regarding how to consider the propensity evidence offered against the defendant under
The judgment is reversed, and the cause remanded for a new trial.
All concur.