Section 23.37 Evidence of Other Crimes and Bad Acts by Defendant

• Library: Criminal Practice 2012 Supp

VI. (§23.37) Evidence of Other Crimes and Bad Acts by Defendant

Generally, evidence of other crimes is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Reese, 274 S.W.2d 304, 307 (Mo. banc 1954). The use of the word “crime” covers any wrongdoing, charged or uncharged, that could have been the subject of a criminal charge. State v. Chiles, 847 S.W.2d 807, 809 n.2 (Mo. App. W.D. 1992); State v. Sladek, 835 S.W.2d 308, 313 n.1 (Mo. banc 1992) (Thomas, J., concurring). “[O]ther crimes” includes reference to the fact that a defendant was on parole, State v. Brown, 670 S.W.2d 140, 141 (Mo. App. S.D. 1984), or that a defendant’s “mug shot” had initials other than the victim’s on the back, thus implying other arrests, State v. Blaney, 801 S.W.2d 447, 450–51 (Mo. App. E.D. 1990). The burden is on the defendant to show that the evidence actually constitutes evidence of other crimes. State v. Simms, 859 S.W.2d 943, 945–47 (Mo. App. E.D. 1993). In addition, the rule covers noncriminal misconduct that would amount to an attack on the defendant’s character. State v. Kitson, 817 S.W.2d 594, 597 (Mo. App. E.D. 1991). The state cannot elicit testimony that the defendant is homosexual in an attempt to prove that the defendant had sex with a young boy. State v. Ellis, 820 S.W.2d 699, 702 (Mo. App. E.D. 1991).

Evidence of other crimes is admissible if it is logically relevant (it has some legitimate tendency to establish directly the defendant’s guilt of the charges for which the defendant is on trial) and if it is legally relevant (its probative value outweighs its prejudicial effect). State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). When the evidence of the defendant’s uncharged misconduct is directly relevant to some disputed material fact, and thus serves a legitimate purpose rather than merely indicting the defendant as a “bad person” with the propensity to commit the particular type of crime, the prior crimes rule is no bar. State v. Shaw, 847 S.W.2d 768, 778 (Mo. banc 1993). The point for which this evidence is accepted must be in issue. State v. Griffin, 336 S.W.2d 364, 367 (Mo. 1960).

Under the traditional common-scheme-or-plan exception allowing admission of evidence of prior misconduct only if it was part of or connected to the same general criminal enterprise, remoteness in time of the prior misconduct can make difficult, or even impossible, proof of a traditional common plan or scheme between separate...