State v. Chiles, WD
| Decision Date | 24 November 1992 |
| Docket Number | No. WD,WD |
| Citation | 847 S.W.2d 807 |
| Parties | STATE of Missouri, Respondent, v. Stanley Robert CHILES, Appellant. 45519. |
| Court | Missouri Court of Appeals |
James F. Crews, Crews, Gaw, Lutz & Opie, Tipton, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P.J. and BRECKENRIDGE and HANNA, JJ.
Stanley Robert Chiles appeals from his conviction for sexual abuse in the first degree, § 566.100, RSMo 1986, 1 for which he was sentenced to a four-year term of imprisonment. Chiles presents three points on appeal, claiming that the trial court erred in: (1) refusing his request for a mistrial when the state attempted to introduce, before the jury, a transcript of a prior conviction; (2) permitting a highway patrolman to testify about his investigation of an allegation of child molestation against Chiles because such testimony was prejudicial and regarded events remote in time; (3) failing to submit the issue of punishment to the jury because Chiles was not proven to be a prior offender. Reversed and remanded.
In February of 1991, eleven-year old B.H. lived with his father and stepmother next door to Stanley Chiles. B.H. was friends with Chiles' son and daughter. At the invitation of Chiles' daughter, B.H. ate dinner and spent the night at the Chiles' home on Sunday, February 3, 1991.
Before going to bed at the Chiles' home, B.H. took a shower. Chiles entered the bathroom while B.H. was showering and began helping B.H. scrub his hair. Chiles then left the bathroom. He later returned and fanned the bathroom door open and shut while B.H. was getting dressed.
B.H. went to bed about 11:00 p.m. He slept on the couch in the living room wearing underwear with "Jam" shorts over them and a shirt borrowed from Chiles' daughter. B.H. was awakened in the middle of the night by Chiles touching B.H.'s penis through his clothing. B.H. turned over on his stomach, got up quickly, told Chiles not to touch him anymore and went to the bathroom.
When B.H. returned from the bathroom, Chiles was in the living room. Chiles asked B.H. some questions about having sex with girls and about having an erection. Chiles also forced B.H. to place a vibrator on B.H.'s penis. Chiles then played a movie on the VCR and fell asleep in a chair. B.H. testified that during this time he wanted to go home but was afraid to do so because Chiles' feet were on his belongings. B.H. returned to his own home about 6:30 a.m. after being awakened by Chiles' daughter. B.H. woke his father and told him what had happened at the Chiles' home.
At trial, Sergeant Roy Herren of the Missouri Highway Patrol testified that he had investigated a report of sexual abuse involving Chiles in May of 1984. Herren testified as to what Chiles told him after Chiles received and waived his Miranda rights. Herren testified that on May 17, 1984, when Chiles was working at a video arcade in Lake Ozark, Missouri, he invited two young boys, a nine-year old and a twelve-year old, to spend the night at his home where he fondled the nine-year old's genitals while in the shower and then had oral and anal sex with the nine-year old. The prosecution offered Exhibit 3, a copy of a judgment and sentence in Morgan County, Missouri, for admission into evidence. Chiles objected and asked for a mistrial which was denied. The court found Chiles to be a prior offender and, after the jury found him guilty of sexual abuse in the first degree, the court sentenced Chiles to a four-year term of imprisonment.
The dispositive issue on this appeal is raised by Chiles in his second point. In this point, Chiles argues that the trial court erred in permitting a highway patrol officer to testify, over objection, regarding his investigation of a prior child molestation allegation against Chiles, because such testimony was too remote in time to be relevant and was unduly inflammatory. Chiles also argues that the evidence had no legitimate tendency to prove guilt of the crime charged, had a prejudicial effect which outweighed its probative value, and was unrelated to the crime charged.
"A criminal defendant has a right to be tried only for the crime or crimes with which he is charged." State v. Shaw, 636 S.W.2d 667, 671 (Mo. banc 1982). Evidence of offenses unrelated to the offense charged is inadmissible unless it has a legitimate tendency to prove the defendant's guilt of the crime charged. Id. at 671-72. In order for the defendant's separate and distinct crimes 2 to have a legitimate tendency to prove the crime charged, the evidence must establish one of the following: 1) motive; 2) intent; 3) absence of mistake or accident; 4) a common scheme or plan involving the commission of two or more crimes so related that proof of one tends to establish the other; or 5) the identity of the person charged with the crime. Id. at 672. See also State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992). Such evidence is not admissible on the theory that prior crimes show the defendant's propensity to commit that particular type of crime. State v. Courter, 793 S.W.2d 386, 389 (Mo.App.1990). Even when prior crime evidence is admissible under one of the exceptions, it can only be admitted if the probative value of the evidence outweighs its prejudicial effect. State v. Barnard, 820 S.W.2d 674, 678 (Mo.App.1991). The trial court has a great deal of discretion in determining whether the probative value outweighs its prejudicial effect. Shaw, 636 S.W.2d at 672.
In applying the five exceptions to the facts of the case at hand, the common scheme or plan exception is the only exception which is potentially applicable. There is no question of Chiles' motive or intent and no suggestion that mistake or accident was involved. Nor is the identity exception applicable in Chiles' case because Chiles' identity is not at issue. The common scheme or plan exception has traditionally been utilized when a series of crimes are so linked together in time and circumstances that proving one proves the others or when a series of offenses are committed, each for the purpose of facilitating another. Courter, 793 S.W.2d at 389. The common scheme or plan exception is not applicable to Chiles' case in this traditional form as the prior crime occurred nearly seven years previously.
This court recognized in Courter, 793 S.W.2d at 389, that the common scheme or plan exception also permits admission of evidence of crimes which are committed in such a similar and distinctive manner that they are "modus operandi" type crimes. Judge Thomas, of the Missouri Supreme Court, suggests that it might be better to recognize a separate exception for "signature modus operandi/corroboration" evidence rather than include it within the generic title of common scheme or plan. Sladek, 835 S.W.2d at 317 (Thomas, J. concurring). Evidence of the prior crime is probative because it corroborates the victim's complaint in the crime charged. Id. The modus operandi must be sufficiently unique and sufficiently associated with the defendant that it is in the nature of a signature. Id. at 316. Judge Thomas cautions against using signature modus operandi/corroboration evidence too casually, because:
[a]lthough we have called this exception corroboration, it really involves reasoning from the signature modus operandi based upon the propensity of the defendant to commit this type of crime to the conclusion that the defendant committed the...
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State v. Criswell, s. WD
...the crime charged if it establishes motive, intent, absence of mistake or accident, common scheme or plan, or identity. State v. Chiles, 847 S.W.2d 807, 809 (Mo.App.1992). The common scheme or plan exception allows evidence of other crimes when that evidence "tend[s] to establish ... a comm......