Exceptions to this general exclusionary rule exist, however, when the evidence of the other crime tends 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) the identity of the person charged with the commission of the crime on trial. State v. Merritt, 734 S.W.2d 926, 933[13] (Mo.App. 1987); State v. Clay, 686 S.W.2d 516, 518[1, 2] (Mo.App. 1985). These exceptions permit the introduction of evidence for some purpose other than to show a greater likelihood that appellant, by virtue of his criminal nature as evidenced by proof of another crime, committed the crime currently charged. If the evidence falls within one of these recognized exceptions, it is admissible, and the determination of whether the relevance of the evidence outweighs its prejudicial effect lies within the sound discretion of the trial court.
The cases required that the sexual misconduct be similar in nature but did not require a showing that the prior sexual misconduct is so "unusual and distinct" as to be a signature of the defendant and his activities. See Erickson, 793 S.W.2d at 383; see also State v. Clay, 686 S.W.2d 516, 517 (Mo.App. 1985). As the court of appeals noted in State v. Brooks, 810 S.W.2d 627 (Mo.App. 1991), the result has been that "the common scheme or plan exception [is] being conflated or mixed with the identity exception; the definitional lines separating these two exceptions [has] become blurred; and the trial court admits evidence of other crimes without a clear rationale for doing so."
Id. In Missouri, our courts have, in effect, adopted this so-called "spurious plan" theory of submissibility and, thus, have admitted other crimes of limited as well as striking similarity as sufficient evidence of the existence of a scheme or plan. See, e.g. State v. Clay, 686 S.W.2d 516 (Mo.App. 1985) and cases collected therein. Quite often, this results in the common scheme or plan exception being conflated or mixed with the identity exception; the definitional lines separating these two exceptions become blurred; and the trial court admits evidence of other crimes without a clear rationale for doing so. This is especially prevalent in prosecution of an adult's sexual misconduct against minors.
It is appropriate to note that the common scheme or plan exception embraces not only crimes which are sequentially linked, but also to crimes which are committed in such a similar fashion that the inference follows they were the work of the same individual. These are the "modus operandi" type cases where identical methodology earmarks separate crimes as the handiwork of the accused because the acts bear a striking similarity. State v. Clay, 686 S.W.2d 516, 518 (Mo.App. 1985). Returning now to the present case, no argument may be made that evidence of appellant's prior sexual misconduct was admissible to prove identity, to establish motive or that the events separated by more than two decades were so related to each other and so inseparably connected that proof of one necessarily involved proving the other.
Thus, the investigation of one crime may involve an inquiry into another crime, to such an extent that the two become so inseparably connected that proof of one necessarily involves proving the other. State v. Clay, 686 S.W.2d 516, 518 (Mo.App. 1985). The clear connection between defendant's arrest for burglary and his identification as a participant in the Harmon murder is sufficient to establish the relevance of the evidence relating to that arrest.
The rule against admissibility of hearsay statements is inapplicable where testimony is offered in explanation of conduct rather than as proof of the matters or facts asserted therein. Mallett, 723 S.W.2d at 536; State v. Clay, 686 S.W.2d 516, 518 (Mo.App. 1985). Viewed in its relevant context, Cheryl Noack testified to the following as a witness for the state on direct examination:
The testimony as to the batteries and the attache case was relevant to show defendant's common scheme or plan in stealing the items in a continuous course of conduct in one day. State v. Campbell, 689 S.W.2d 696, 698[2] (Mo.App. 1985); State v. Clay, 686 S.W.2d 516, 518[2] (Mo.App. 1985). Moreover, defendant argued he gave a false confession in return for the police not arresting him on outstanding warrants and not prosecuting him for the thefts to which he was confessing.
First, the state made no argument drawing the attenuated inference Alexander suggests. Second, even if the statement would be hearsay if offered to prove the facts stated, the same statement could nevertheless be admissible for the purpose of explaining why Officer Boyd went to the house to investigate. State v. Brooks, 618 S.W.2d 22, 25[6, 7] (Mo. banc 1981); State v. Clay, 686 S.W.2d 516, 518[6] (Mo.App. 1985). Silvey's statement presents no hearsay problems.
The testimony at issue was not offered to prove the truth of the statement, but rather to explain the officer's subsequent conduct, his investigation of the basement windowsill where he found broken glass stained with blood. It is well established that testimony offered to explain conduct, rather than to prove the truth of the facts testified to is not inadmissible hearsay. State v. Brooks, 618 S.W.2d 22, 25 (Mo. banc 1981); State v. Clay, 686 S.W.2d 516, 518 (Mo.App. 1985). We perceive defendant's third point to contend he was subjected to double jeopardy by being convicted of both first degree robbery and burglary in the first degree in that the convictions were based on identical evidence.
The testimony was directly relevant to establish how the caseworker became involved in the 1984 investigation which led to defendant's further confession. Compare State v. Clay, 686 S.W.2d 516 (Mo. App. 1985) (Testimony offered in explanation of conduct rather than as proof of facts testified to is not inadmissible hearsay.) It was relevant on the contested issue of identity, State v. Ford, 677 S.W.2d 352, 355 (Mo.App. 1984), and showed a common scheme or plan by defendant to sexually molest young girls.