State v. Conley, 76234

• Decision Date: 22 March 1994
• Docket Number: No. 76234,76234
• Citation: 873 S.W.2d 233
• Parties: STATE of Missouri, Respondent, v. Cedric CONLEY, Appellant.
• Court: Missouri Supreme Court

Page 233

873 S.W.2d 233

STATE of Missouri, Respondent, v. Cedric CONLEY, Appellant.

No. 76234.

Supreme Court of Missouri,

En Banc.

March 22, 1994.

Charles M. Shaw, Clayton, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Elizabeth L. Ziegler, Millie Aulbur, Asst. Attys. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

Defendant Cedric Conley was originally charged by indictment with fifty-one counts involving sexual abuse of young males. The trial court divided these charges into four groups. The fourth group consisted of charges alleged to have occurred at St. Vincent's Group Home for Boys between June 1988 and October 1990. Defendant was convicted of four counts of sodomy, three counts of sexual assault in the first degree, and one count of attempted sodomy. Following opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer. Rule 83.03. Reversed and remanded.

FACTS

Prior to his arrest in 1990, defendant had been employed in the field of child care for approximately thirteen years. Specifically he was employed at St. Vincent's from June 1988 through October 1990. All of the victims of the alleged offenses were residents at St. Vincent's during part or all of that period.

K.S. was ten or eleven years old when he lived at St. Vincent's, where defendant was his houseparent. K.S. testified that defendant would tell him he loved him and kiss him on the cheek. K.S. also testified that defendant would sometimes touch K.S.'s penis through his clothing as long as a couple of minutes. These occasions occurred while the two were alone talking in the game room or in K.S.'s bedroom. K.S. further testified that on a couple of occasions defendant touched his penis while defendant helped the boy tuck in his shirt. Others were present on these occasions. K.S. testified that defendant threatened to hurt K.S.'s brother if K.S. told. On this evidence the jury convicted the defendant of one count of sodomy and two counts of sexual abuse in the first degree, but defendant was found not guilty of one count of sodomy and three counts of sexual abuse.

J.B. was twelve years old when he lived at St. Vincent's. J.B. testified that defendant often told him he loved him and kissed him on the ears. J.B. testified that on more than ten occasions when he would be alone with defendant in the game room at St. Vincent's, defendant would touch J.B.'s penis. J.B. testified that on these occasions his pants were unzipped and defendant touched his penis directly, but that at other times the touching occurred through J.B.'s clothes. Though charged with three counts of sodomy and one count of sexual abuse in the first degree regarding J.B., the defendant was convicted of only one sodomy charge and one sexual abuse in the first degree charge.

E.B., twelve years of age when he first went to St. Vincent's, also testified that the defendant would kiss him on the neck and sometimes attempt to kiss him on the lips. On one occasion when defendant and E.B. were watching television, defendant held E.B.'s head and tried to force E.B. to place his mouth on defendant's penis. On this evidence defendant was convicted of attempted sodomy but acquitted of sodomy.

P.M. was nine or ten years of age while a resident at St. Vincent's. P.M. testified that defendant kissed him on the face and neck and would on occasion bite his ears. P.M. testified that this activity made him "feel a little weird." P.M. also testified that while he and defendant were wrestling, defendant would often grab P.M.'s penis. P.M. testified that a number of times defendant placed his mouth on P.M.'s penis and the defendant had P.M. place his mouth on defendant's penis several times. On this evidence defendant was convicted of two counts of sodomy and acquitted of two other identical counts.

D.T. was between nine and twelve years of age while a resident of St. Vincent's. He testified defendant would attempt to kiss him on the mouth and that defendant would grab his penis while wrestling. According to D.T., defendant claimed this was some sort of karate hold. D.T. indicated this occurred on a couple of occasions when the defendant would have his hands inside the boy's underwear at the time the touching occurred. Defendant was convicted of one count of sodomy and acquitted of one count of sexual abuse in the first degree alleged to have been committed against D.T.

I.

Defendant challenges the admission of evidence of acts of sexual abuse which were not the subject of this trial and which involved other alleged victims. That evidence included the testimony of three older boys who claimed to have been sexually abused by defendant while he was a houseparent at another home for boys prior to 1987. The evidence involving uncharged offenses also included the testimony of M.S., a younger boy who was a foster child of defendant's.

With regard to the older boys, they testified to incidents involving a similar progression of sexual activity to that described by the boys at St. Vincent's. That is, defendant would begin by gaining the boy's confidence and befriending the boy. This would progress to hugging and kissing and would graduate to touching the genitals while wrestling or, in some cases, culminate in masturbation or oral sex. The incidents involving the older boys were totally different in one respect. The incidents with older boys included defendant showing them pornographic films while engaging in masturbation and oral sex with the boys.

The fourth boy, M.S., was only twelve years old at the time of trial. He was a foster child of defendant's. He testified that defendant would hug and kiss him and that defendant would touch him in the pubic area while the two were wrestling. Although M.S. met defendant while M.S. resided at St. Vincent's, the conduct apparently occurred while M.S. lived in defendant's home and was unrelated to the events occurring at St. Vincent's.

Other evidence which defendant challenges includes a tape recorded telephone conversation between defendant and one of the older boys in which defendant seems to admit to having had sex with the older boy but denies any other sexual involvement. ¹ Also challenged is a confession. In the confession defendant admits to acts of sodomy with the older boys. However, he claimed that the only time he touched the genitals of any boys at St. Vincent's was when he was wrestling with D.T. and used the "genital hold," a karate technique which is used to make an opponent submit.

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. As a result, our courts are rightly suspicious of admitting evidence that a defendant committed uncharged crimes. As a general rule, evidence of other similar crimes is not admissible to show a defendant has a propensity to commit crimes such as the crime charged. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). On the other hand, evidence of uncharged misconduct may be admissible to show motive, intent, identity, absence of mistake or accident, or a common scheme or plan. Id.

A.

In this case the jury was instructed that the evidence of uncharged sex acts could be considered insofar as it tended to establish a "common scheme or plan" and for "the purpose of deciding the believability of defendant and the weight to be given to his testimony." The common scheme or plan theory is not a "series of crimes" theory in which the evidence of one crime may be offered to show the defendant's propensity to engage in the crime charged. Rather, the traditional common scheme or plan exception permits evidence of other crimes which are so interrelated to the charged crime that the proof of one tends to establish the other.

What Bernard attempted to make clear was that where the uncharged offenses or conduct involved different victims at a different and unrelated time and place, the traditional common scheme or plan exception would not apply. However, the Court in Bernard went on to recognize a related exception known as the "signature modus operandi /corroboration exception." That exception, similar to the identity exception, authorizes evidence of an uncharged crime if the offenses are nearly identical and their methodology so unusual and distinctive that they amount to a signature of the defendant involved in both crimes. Here there are similarities in the progression of defendant's conduct toward his victims in the charged and uncharged crimes. However, in this case there was nothing so unusual about the uncharged acts as to cause them to fall within the signature modus operandi exception, which permits admission of a very limited class of evidence to corroborate a victim's story. On the basis of the erroneous instruction telling the jury that they could consider the evidence as part of a "common scheme or plan," this case must be reversed.

B.

Here the state does not argue that the evidence of uncharged crimes was admissible under the "common scheme or plan" exception. The argument here is that all the uncharged conduct was admissible under the "intent" exception. The state points out that all offenses charged in this case require that the jury find that the sexual conduct, or deviate sexual intercourse, occurred "for the purpose of arousal or gratifying sexual desire." § 566.010(2) and (3), § 566.060.3, § 566.100.1(2), RSMo 1986; State v. Fields 739 S.W.2d 700, 704 (Mo. banc 1987). The state claims that the uncharged conduct proves that when the alleged conduct in this case occurred, defendant acted for the purpose of gratifying sexual desire. If 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.

In order for intent or the absence of mistake or accident to serve as the basis for admission of evidence of similar uncharged crimes, it is necessary that those be...