Opinion
No. 24252
September 11, 2002
Appeal From Circuit Court of Greene County, Hon. Henry W. Westbrooke, Jr.
Nancy A. Mckerrow, Counsel for Appellant.
Sara L. Trower, Counsel for Respondent.
Ronnie C. Gaines ("Defendant") appeals from the judgment entered after he was convicted by a jury and sentenced by the trial judge for assault in the second degree, section 565.060, RSMo (2000). Defendant maintains the trial court erred in admitting evidence that he had allegedly assaulted the same person, Terri Raye Tarwater ("Victim"), on an earlier occasion. On this record, we conclude the trial court abused its discretion when it allowed the prosecutor to introduce evidence of Defendant's prior bad acts. The judgment must be reversed, and the case remanded.
In August 1997, Defendant met Victim at a bus stop in Springfield, Missouri. Three weeks later she allowed Defendant to move into her duplex. By December 12, 1997, Victim had decided she wanted Defendant to leave her home. On that date, while preparing to give her daughter a bath, she told him to move out. Next, she went to the closet and "starting packing his stuff, throwing it out of the closet." This led to a scuffle between Victim and Defendant. Victim then went to check the temperature of her daughter's bath water whereon Defendant pushed Victim's head under the water. After escaping from that predicament, Victim saw Defendant trying to destroy one of her coats. When Victim started to retaliate by cutting up Defendant's coat, Defendant knocked her to the floor by hitting her in the face with his fist. As a result of the assault, Victim suffered several facial injuries, including a broken nose and a "blow-out fracture," i.e., a fracture of the floor of the eye socket. Ultimately, Victim's injured eye hemorrhaged causing her to lose her sight in that eye.
At trial, the judge allowed Victim to testify about an incident in November 1997 when, after Victim told Defendant to leave her apartment, he punched her in the face with his fist and broke her nose. This evidence was admitted over Defendant's objection after the prosecutor argued he was offering this evidence of a prior bad act to show "motive and intent and . . . defendant's animosity toward the victim." Continuing, the prosecutor argued that this evidence was admissible to show absence of "mistake or accident[;]" that it was not being offered "for propensity purposes, but to prove the element of the crime."
Defendant testified at trial and claimed he never struck Victim, either in November or December. Defendant claimed that Victim fell and hit her nose on a rocking chair in November. As for the alleged assault in December, Defendant testified he did not hit Victim, that he was out of town on December 12, 1997, and upon returning on December 14, 1997, Victim told him she had been in a car wreck.
The jury found Defendant guilty of second-degree assault, and the trial judge sentenced him to prison for a six-year term.
Defendant's point on appeal maintains the trial court committed reversible error when it allowed Victim to testify as to the alleged November 1997 assault. He argues this was evidence of uncharged crimes used to show he had a propensity to commit the crime for which he was charged, and as such, it was inadmissible. In advancing his argument, Defendant concedes there are well-recognized exceptions to this general rule, but insists that none of the exceptions argued by the prosecutor at trial, i.e., motive, intent, or absence of mistake or accident, apply here because his defense was one of alibi.
The State argues the evidence was admissible to show "intent and [a] pattern of animus against the victim." In essence, the State claims that intent "was at issue" because it is a statutory element of the crime charged, and the exception to the general rule applies.
The trial court has broad discretion in deciding relevance and admissibility of evidence, and its decision will not be disturbed on appeal unless a clear abuse of discretion can be shown. State v. Hatch , 54 S.W.3d 623, 631[16,17] (Mo.App. 2001); State v. Dowell , 25 S.W.3d 594, 602 (Mo.App. 2000). An abuse of discretion is shown where the decision is "`clearly against the logic of the circumstances before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and suggests a lack of careful, deliberate consideration.'" Dowell , 25 S.W.3d at 602[7] (citations omitted).
As a rule, evidence of uncharged crimes, wrongs, or acts is inadmissible to show an accused is predisposed or has a propensity to commit criminal acts. State v. Goodwin , 43 S.W.3d 805, 815 (Mo.banc 2001). "A most fundamental principle of our system of justice is that an accused may not be found guilty or punished for a crime other than the one on trial." State v. Conley , 873 S.W.2d 233, 236 (Mo.banc 1994). "In all cases in which evidence of uncharged misconduct is offered, `the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny.'" State v. Burns , 978 S.W.2d 759, 761 (Mo.banc 1998) (citations omitted). "`[T]he inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors.'" State v. Reese , 274 S.W.2d 304, 307 (Mo.banc 1954) (citations omitted). If the trial court does not clearly perceive the connection between the prior bad act and the crime charged, then the defendant should be given the benefit of the doubt, and the evidence should be rejected. Id . Evidence of other crimes is highly prejudicial and should be received only when use of that evidence is strictly necessary. State v. Collins , 669 S.W.2d 933, 936 (Mo.banc 1984).
Exceptions to the general rule against admitting evidence of uncharged crimes do exist. Thus, evidence of uncharged misconduct can be admitted without committing reversible error to show motive, intent, identity, absence of mistake or accident, or a common scheme or plan. Id . Even this list of exceptions is not exhaustive. State v. Barriner , 34 S.W.3d 139, 145 (Mo.banc 2000).
Here, Defendant argues that use of the November assault was not necessary because intent or motive was not an issue, i.e., he claimed he was not there at the time the December assault occurred. Consequently, he urges reversal because of the prejudicial effect of this prior bad act evidence.
The State counters by claiming "[Defendant] is wrong." The State argues that intent is always at issue in first and second-degree assault cases because of the statutory mens rea element of the crimes.
In Conley , the Supreme Court of Missouri rejected an argument akin to that made by the State here. The Conley court noted that "[i]f the state's argument is correct, in any case having a mens rea element, prior similar crimes may be admitted to establish that issue. But that is not the law." 873 S.W.2d at 237. Continuing, the Conley court explained that when direct evidence is presented demonstrating the accused committed the illicit act, the proof of the act ordinarily gives rise to an inference of the necessary mens rea. Id . at 237[6]. "No other evidence is required to establish that element of the case unless the state has some reason to believe that the defendant will make intent or mistake or accident an issue in the case." Id . at 237[7]. The Conley court ruled that if motive or intent is not a material or real issue in the case, then the offering of other crimes to establish that element is unnecessary, and the probative value of such evidence is "far outweighed" by its prejudicial effect. Id . at 237[8].
In State v. Wallace , 943 S.W.2d 721 (Mo.App. 1997), a first-degree assault conviction was overturned because prior bad acts of the defendant against the same victim were admitted into evidence. In Wallace , the defendant was accused of grabbing the victim by the throat, throwing her to the ground, and choking her until she lost consciousness. The court stated that "unless and until the defendant challenges the intent element, the prosecutor's need to introduce evidence of prior bad acts is minimal, while the prejudicial effect of admitting such evidence is substantial." Id . at 725[4].
The State does not explain why the reasoning in Conley and Wallace does not govern the outcome of this case. It does cite cases in which prior bad acts evidence was allowed at trial and no error was found. However, each case cited by the State had facts that clearly implicated an exception to the general rule; accordingly, they are inapposite here. This court's independent research has uncovered only two cases that support the State's position, i.e., State v. Patterson , 847 S.W.2d 935 (Mo.App. 1993), and State v. Earvin , 743 S.W.2d 125 (Mo.App. 1988). Cf. State v. Lancaster , 954 S.W.2d 27 (Mo.App. 1997); State v. Aye , 927 S.W.2d 951 (Mo.App. 1996). However, these two supporting cases pre-date the supreme court's decision in Conley . Under Article V, Section 2 of the Missouri Constitution, we are bound to follow the last controlling decision of the Supreme Court of Missouri. State v. Graham , 964 S.W.2d 836, 838 (Mo.App. 1998).
The State cites State v. Smotherman , 993 S.W.2d 525, 529 (Mo.App. 1999) ("motive and intent squarely in issue"); State v. Jacobs , 939 S.W.2d 7, 10 (Mo.App. 1997) ("issue of whether [kidnapped victim] was held against her will was contested"); State v. Williams , 865 S.W.2d 794, 799-804 (Mo.App. 1993) (injuries to deceased child abuse victim were claimed to be accidental or resulted from disciplining the child); and State v. Cunningham , 578 S.W.2d 341, 342 (Mo.App. 1979) (defendant claimed "he had gone berserk in a jealous rage" and presented evidence of "mental disease or defect excluding responsibility").
Here, Defendant first attempted to drown Victim by holding her head under water in the bathtub. Then, Defendant hit Victim with his fist with enough force to break her nose, fracture the floor of the eye socket, and ultimately cause her to lose her sight. Victim stated the whole side of her face was numb and bleeding, she was in horrible pain, and she felt like she was dying. After this occurred, Defendant said, "Die, bitch." These are facts of the type contemplated by the rule enunciated in Conley , i.e., direct evidence that Defendant committed the illicit acts giving rise to an inference of the necessary mens rea. Because Defendant used an alibi defense, no exception to the general rule applies allowing for the admission of an uncharged crime into evidence. "The facts constituting the offense . . . were sufficient evidence of intent. The act of defendant . . . needed no explanation to indicate intent." State v. Spray , 74 S.W. 846, 851 (Mo. 1903).
The extremely prejudicial nature of the testimony relating to the November incident "far outweighed" the probative value, if any, of such evidence. None of the exceptions to the general rule apply, and as such, the trial court abused its discretion. The judgment and sentence for second-degree assault are reversed, and the cause remanded for a new trial.
Prewitt, P.J., and Rahmeyer, C.J., concur.