State v. Bernard, No. 74775

• Decision Date: 23 February 1993
• Docket Number: No. 74775
• Citation: 849 S.W.2d 10
• Parties: STATE of Missouri, Respondent, v. Larry E. BERNARD, Appellant.
• Court: Missouri Supreme Court

Page 10

849 S.W.2d 10

61 USLW 2596

STATE of Missouri, Respondent, v. Larry E. BERNARD, Appellant.

No. 74775.

Supreme Court of Missouri En Banc.

Feb. 23, 1993.

Kenneth C. Hensley, Raymore, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

COVINGTON, Judge.

The appellant, Larry Bernard, was tried and convicted by a jury of sexual abuse in the first degree and attempted forcible sodomy. §§ 566.100 and .060, RSMo 1986. The trial court sentenced appellant to two years on the first degree sexual abuse conviction and five years for the attempted forcible sodomy conviction, the sentences to be served consecutively. The Missouri Court of Appeals, Western District, affirmed. This Court granted transfer. The judgment is reversed and the cause remanded for a new trial.

The evidence shows that in 1988 the victim, a fourteen year old male, attended a church in which appellant was the interim pastor. Appellant and the victim's family developed a close relationship, participating in many activities together. In October of 1988, appellant convinced the victim's family to give a surprise birthday party for the victim. As part of the birthday events, the appellant and the victim's family agreed that the victim should spend the night before the party with appellant. The victim's parents assumed that the victim would stay at appellant's house.

On the night of October 21, 1988, appellant took the victim, the victim's sister, and appellant's daughter to a movie. After the movie, appellant drove the two young women to their college dormitory. The victim was led to believe that the two women were going to be only briefly in the dormitory and would then return to the car. By prearrangement with the young women, appellant drove off without explanation to the victim. Appellant, with the victim in the car, drove for some time. The victim testified that during this time he was a "little bit scared" because he did not understand why appellant had left the women at the dormitory and because the victim did not know where appellant was taking him.

Eventually appellant stopped at a motel where he rented a room for himself and the victim. Appellant feigned waiting for someone to arrive while he and the victim watched television and played cards. After a time, appellant convinced the victim to play a game of "strip rummy." The game ended when both appellant and the victim had stripped to their underwear, at which time they got into a single bed and fell asleep.

During the night, the victim awakened to find appellant rubbing the victim's back, arm and chest. Appellant then moved his hand to the victim's genitals. The victim attempted to push appellant's hand away but was not strong enough. The victim told appellant to stop, but appellant continued to place his hands on the victim's genitals. The victim testified that he was terrified and tried repeatedly to stop appellant's activity. Later during the night, appellant placed his erect penis against the victim's genitals. The victim attempted to push away appellant, but appellant overpowered him.

The next morning, appellant began to caress the victim's arms and legs as he had done the night before. Afterward, appellant requested that the victim allow him to take a picture of the victim nude. The victim refused but did agree to being photographed in his underwear. Appellant then had the victim take a nude photograph of appellant. Upon leaving the motel, appellant encouraged the victim to take off his clothes and run around the car or to walk around the car in his underwear. The victim refused. Appellant then took the victim to the birthday party. The victim did not report the incident until more than one year later.

I.

Appellant contends that the trial court erred in allowing, over appellant's objection, four witnesses to testify regarding prior sexual abuse committed by appellant for which appellant was never charged. The witnesses were members of appellant's youth group during 1977-78 in a church in which appellant was then pastor.

The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible 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 (1954). There are exceptions to the rule. 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, State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992) (quoting State v. Reese, 274 S.W.2d at 307), and if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect. State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). The balancing of the effect and value of evidence rests within the sound discretion of the trial court. See State v. Shaw, 636 S.W.2d 667, 672 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982).

Generally, evidence of other, uncharged misconduct has a legitimate tendency to prove the specific crime charged when it " '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. Sladek, 835 S.W.2d at 311 (quoting People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 294 (1901)). The five enumerated exceptions have sometimes been difficult to define and apply. State v. Sladek, 835 S.W.2d at 314 (Thomas, J. concurring). Evidence of prior misconduct that does not fall within one of the five enumerated exceptions may nevertheless be admissible if the evidence is logically and legally relevant. Id. at 311-12.

In cases involving sexual abuse of children, the recent trend in Missouri has been liberally to allow the admission of evidence of prior sexual misconduct by the defendant. State v. Lachterman, 812 S.W.2d 759, 768 (Mo.App.1991). Cases that have admitted evidence of prior sexual misconduct have allowed it under three of the five enumerated exceptions: motive; identity; or common scheme or plan. ¹ Neither motive nor identity is at issue in this case.

It is in the application of the common scheme or plan exception that courts most often have admitted evidence of the defendant's prior sexual abuse of minors other than the victim. Liberal use of the exception has led to a distortion of the original purpose of the exception. A recapitulation of the cases regarding the common scheme or plan exception is useful not only in understanding the development of the distortion but also in resolving the confusion born of it.

Courts have long recognized the admissibility of evidence of other crimes to prove that the crime for which the defendant is currently on trial was part of a larger plan. See e.g. State v. Bailey, 190 Mo. 257, 88 S.W. 733, 740-41 (1905). The common scheme or plan exception initially required proof of existence of an actual plan connecting the prior misconduct with the crime charged. In State v. Buxton, 324 Mo. 78, 22 S.W.2d 635 (1929), this Court held "[i]t certainly is not enough to show that the person on trial committed one or more crimes of the same general nature" in order to fall within the common scheme or plan exception. Buxton, 22 S.W.2d at 637. For the prior crimes to be admissible under a common scheme or plan, it must be shown that the prior crimes had "some relation to the general criminal enterprise." Id.

In State v. Atkinson, 293 S.W.2d 941 (Mo.1956), this Court specifically rejected application of the common scheme or plan exception in a case involving evidence of prior sexual misconduct by the defendant with someone other than the victim. Atkinson involved an employer who sodomized his teenaged employee. The state argued that the evidence of defendant's prior sexual misconduct with two other teenage boys also employed by the defendant should be admissible because it indicated that the "defendant followed substantially the same pattern in his dealings with each of these three boys." The state contended "so strange and unusual are the acts of homosexuality" that the prior acts of sodomy tended to prove that the defendant had committed the act with the victim. Atkinson, 293 S.W.2d at 943. The Court rejected the state's argument, noting that "the evidence did not disclose crimes that were so interrelated that proof of one would tend to establish the others." Id.

Other early cases that applied the common scheme or plan exception to prior sexual misconduct required that the prior sexual misconduct be part of the "same general criminal enterprise" that led to the sexual assault charged. Buxton, 22 S.W.2d at 637. In State v. Kornegger, 255 S.W.2d 765 (Mo.1953), the defendant committed an act of molestation against the victim. After the incident the defendant told the victim to meet him at the same place the following day. The defendant did not appear the following day but did appear the day after. The defendant again approached the victim, who had notified her parents, and after the defendant again exposed himself indecently to the victim the police arrested him. At trial the court admitted testimony concerning the subsequent incident of exposure. This Court affirmed the decision of the trial court under both the common scheme or plan and the identity exceptions. This Court found that the acts were connected by the defendant's request that the victim meet him again and also tended to show that the person who committed the second incident of exposure also committed the first act...