Protecting the predator or the prey? The Missouri Supreme Court's refusal to allow past sexual misconduct as propensity evidence.

• Author: Marcantel, William E.

1. INTRODUCTION

   Americans consider child molestation and sexual assault among the most heinous crimes that one can commit. (2) In response to the public's opinion regarding these crimes, Congress created exceptions to the longstanding rule barring character propensity evidence. (3) Over the protests of prominent legal figures, (4) Congress enacted Federal Rules of Evidence 413415 in 1994.5 Though these rules have been sustained by several appellate court decisions, (6) the constitutionality of Rules 413-415 has not been conclusively decided by the United States Supreme Court.

   Missouri's legislature has twice attempted to pass a statute regarding child molestation similar to Federal Rule of Evidence 414, and twice the Missouri Supreme Court has struck down these attempts as unconstitutional. (7) Although the Missouri Supreme Court relied entirely on state constitutional grounds in refusing to uphold statutes permitting propensity evidence in child molestation prosecutions, one must ask whether the Missouri Supreme Court should instead follow in the footsteps of the of the federal judiciary, which has allowed similar long-standing rules of evidence to be rejected in favor of the will of the legislature. The essence of this query lies in the answer to the question of whether the prejudicial effect of such propensity evidence and the threat to an individual's right to be tried only for the crime for which one stands accused outweighs the potential dangers posed to victims and society.

2. FACTS AND HOLDING

   In the case of State v. Ellison, the victim was a pre-pubescent child, barely at the age of rational cognition, when the abuse by Donald Ellison began. (8) Donald Ellison's wife, Tena, and the child victim's mother worked together at Dairy Queen. (9) On days that the victim's mother was working, Tena would watch the victim. (10) However, on the days that both Tena and the victim's mother would work, the child and her sibling were left in the care of Donald Ellison. (11) In the summer of 2003, Donald watched the children while Tena and the victim's mother were at work. (12) On this occasion, Donald asked the victim to go to the bedroom with him, "where he engaged in sexual intercourse with the child, despite her repeat requests that he stop." (13)

   After this initial incident, Donald continued to make "inappropriate sexual advances" when the children were left in his care, showing the victim pornography and masturbating in front of her. (14) According to the record, Donald "ejaculated in the child's presence and asked her to drink his ejaculate" and he had "vaginal intercourse with the child a number of times in various rooms in Ellison's house." (15) Finally on August 19, 2004, the child could not bear the burden of the abuse any longer and broke down in the midst of a slumber party, revealing that Donald Ellison molested her. (16) After being taken home and later to the local police, the victim told her mother and police of the ongoing rape committed by Donald Ellison. (17) The child described to local deputies "various instances of sexual abuse that had taken place after her sixth or seventh birthday and continued until her ninth birthday." (18) The child later testified that she had not spoken of the abuse to anyone until the summer of 2004 because Donald Ellison threatened to kill her if she told. (19)

   Following the victim's interview with local deputies, police arrested Donald Ellison and charged him with child molestation in the first degree. (20) At trial, pursuant to section 566.025 of the Missouri Revised Statutes, (21) the State entered into evidence a certified copy of Ellison's prior conviction "for the class C felony of sexual abuse in the first degree for subjecting a 13-year old girl 'to sexual contact without her consent by the use of forcible compulsion and in the course of such offense Ellison inflicted serious physical injury' to the girl." (22) In a pretrial motion in limine, Ellison requested that the trial court "enter an order ... prohibiting the state or any witness from referring to or offering evidence of" the prior conviction for sexual abuse in the first degree, which the trial court denied. (23) At trial, Ellison also objected "to the admission of the prior conviction as more prejudicial than probative," to which the trial court overruled Ellison's objection and admitted the evidence "finding that 'the evidence of a prior conviction is more probative than prejudicial.'" (24)

   At trial, Ellison also objected to an instruction given to the jury allowing them to consider prior acts of sexual abuse as probative of his propensity to commit the crimes for which he was charged. (25) Ellison argued that the jury instruction "violated his constitutional right to a fair trial;" however, the trial court overruled Ellison's objection and read the instruction to the jury. (26) The jury returned a guilty verdict on the charge of child molestation in the first degree and sentenced Ellison to twenty years imprisonment. (27)

   Ellison appealed his conviction to the Missouri Court of Appeals for the Western District of Missouri, challenging the sufficiency of the evidence supporting his conviction. The court of appeals summarily denied Ellison's sufficiency of evidence claim as having no merit. (28) However, because Ellison also challenged the constitutionality of section 566.025 of the Missouri Revised Statutes, the court of appeals held that it did not have jurisdiction over the case "pursuant to Article III [sic], Section 3 of the Missouri Constitution" (29) and transferred the case to the Missouri Supreme Court. (30)

   On appeal to the Missouri Supreme Court, Ellison continued to attack the constitutionality of section 566.025, which allowed for the use of prior sexual misconduct with a person fourteen years of age or younger "for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he ... is charged." (31) The court agreed with Ellison and held that the statute violated article I, sections 17-18 of the Missouri Constitution. (32) In justifying its decision, the court stated that "[e]vidence of a defendant's prior criminal acts, when admitted purely to demonstrate the defendant's criminal propensity, violates one of the constitutional protections vital to the integrity of our criminal justice system." (33) Following a long line of precedent and rejecting arguments similar to those justifying the constitutionality of Federal Rules of Evidence 413-415, the court reversed the judgment of the trial court and remanded the case for a new trial. (34)

3. LEGAL BACKGROUND

   1. Prior Criminal Acts as Propensity Evidence in Missouri Under the Missouri Constitution, "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information" (35) and "in criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation." (36) Through a series of cases, the Missouri Supreme Court has interpreted these provisions to always exclude evidence of prior crimes or misconduct for the purpose of demonstrating the accused's propensity to commit such acts. Although this evidence is never admissible in Missouri when used to prove the propensity of the accused, evidence of past crimes or misconduct may be admitted into evidence in a criminal trial when used for purposes other than for demonstrating propensity. (37)

      In State v. Spray, the Missouri Supreme Court extensively reviewed its rule regarding the use of prior crimes and misconduct for the purpose of demonstrating the defendant's propensity to commit similar acts. (38) In Spray, the defendant was convicted of robbery after a witness testified that he saw the defendant in the area where the crime was committed and that the defendant not only robbed the victim, but also robbed the witness. (39) In its decision to reverse the defendant's conviction and remand for a new trial, the court held that admission into evidence of the witness's testimony about the other robbery was error on the part of the trial court. (40) The court found that the admission of "the commission of offenses other than the one charged" was generally inadmissible. (41) However, the court noted that past cases determined that there were limited exceptions to the general rule forbidding evidence of prior crimes and misconduct and that most of these exceptions were admissible for the purpose of demonstrating intent, not propensity (with the exception of forgery). (42) Further, the Missouri Supreme Court pointed out that, at least with regards to larceny, other courts held the use of prior misconduct was inadmissible because the prosecution was "'not driven to the necessity of proving intent by proving other felonies committed about the same time.'" (43)

      The court found that the common link between the exceptions to the general ban on the use of prior acts in a criminal trial was that evidence was "admissible only on the ground that it has some logical connection with the offense proposed to be proven." (44) Thus, the court held that evidence of prior crimes or misconduct "is clearly not admissible on the theory that, if a person will commit one offense, he will commit another." (45) Therefore, there was no reason to invade "well-settled rules of evidence" by admitting into evidence testimony regarding a "separate and distinct offense." (46) The Missouri Supreme Court reiterated this general rule banning the admission of prior crimes and misconduct in State v. Reese. (47) In Reese, Samuel Reese was convicted of first degree murder after testimony was admitted into evidence, over Reese's objection, by a witness identifying Reese as a participant in a robbery that occurred two hours after the alleged murder. (48) The court reversed Reese's conviction, holding that the trial court erred in admitting evidence of a separate and distinct crime and that "the introduction of those details...