State v. Johnson

• Decision Date: 16 May 2005
• Docket Number: No. 26301.,26301.
• Citation: State v. Johnson, 161 S.W.3d 920 (Mo. 2005)
• Parties: STATE of Missouri, Respondent, v. Steven Eugene JOHNSON, Appellant.
• Court: Missouri Supreme Court

161 S.W.3d 920

STATE of Missouri, Respondent, v.Steven Eugene JOHNSON, Appellant.

No. 26301.

Missouri Court of Appeals, Southern District, Division Two.

May 16, 2005.

COPYRIGHT MATERIAL OMITTED

Ellen H. Flottman, Columbia, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

ROBERT S. BARNEY, Judge.

Steven Eugene Johnson("Appellant") appeals his conviction by a jury for statutory sodomy in the first degree, a violation of section 566.062.1.¹Following a jury trial, the trial court sentenced him to eight years imprisonment.As explained more fully below, in his sole point on appeal Appellant maintains the trial court erred in admitting into evidence a purported act of inappropriate sexual touching by Appellant on a person other than the victim herein.We reverse the judgment of the trial court.

Appellant does not challenge the sufficiency of the evidence to support the judgment.This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and, as a general rule, disregards all contrary evidence and inferences.State v. Dunn,21 S.W.3d 77, 79(Mo.App.2000).

The record reveals that on April 13, 2003, thirteen-year-old N.T. and her friend, fifteen-year-old J.G., spent the night at the home of twenty-one-year old Amanda Brake("Brake").²Brake shared a home with Appellant, who was forty-three years old, though the two were not involved in a romantic relationship.At Brake's house, the three young women "watched TV;" drank beer; danced; talked; and, listened to the radio.Appellant and some of his friends arrived at the home around 8:00 p.m.

Brake, J.G., and N.T. went to bed in Brake's room at around 4:00 a.m.³According to N.T., she was awakened at about 6:00 a.m.When she awoke, Appellant was leaning down over her, her pajama pants and underwear were pulled down around her knees, and Appellant"had his finger inside of [her] vagina."N.T. "kind of kicked [Appellant] off of [her] and rolled over and squeezed [her] legs really tight together.And then [Appellant] came back and tried to rub [her] leg, and [she] kicked him again and acted like [she] was sleeping.And then [Appellant] got up and left the room. . . ."N.T., who was "scared[,] nervous and frightened," then tried to wake up Brake and J.G.When she was unable to wake them and after she heard Appellant go into the bathroom, N.T. gathered her things and "ran over to [her friend V.H.'s] house as fast as [she] could."⁴

In July of 2003, an informant told Webster County Sheriff's Department InvestigatorRick Hamilton("Hamilton") that Appellant"had sexual relations with a 13-year-old girl."Hamilton initiated a hotline call to the Missouri Division of Family Services and they arranged for N.T. to be interviewed at the Child Advocacy Center.Hamilton then questioned Appellant.Appellant told Hamilton that he did not remember "what [he] did with the girls that night."

The record also shows that during the trial, in addition to the testimony from N.T., Respondent("the State") planned to call J.G. to testify that Appellant had touched her inappropriately.Appellant filed a motion in limine seeking to exclude J.G.'s testimony relating to his commission of "other bad acts" against her.At the hearing on the motion in limine, Appellant's counsel argued that J.G.'s testimony would be "prejudicial to [Appellant]" in that the State had not "charged him with the allegation involving [J.G.];" therefore, her testimony "would deny him a fair trial . . ." and was not admissible as an exception to the prohibition against the admission of prior misconduct evidence.In response, the State argued, in pertinent part, that J.G.'s testimony was relevant and fell within the exception to the use of uncharged prior misconduct, because the event detailed in J.G.'s testimony was "part of the circumstances or sequence of events surrounding the offense charged . . . [and was necessary] to present a complete and coherent picture of what transpired."The trial court overruled Appellant's motion in limine.When J.G. subsequently took the stand, Appellant objected on the same basis raised in the motion in limine.The trial court overruled the objection and noted Appellant's continuing objection to J.G.'s testimony.

J.G. then testified that on the morning in question she awoke at 8:00 a.m. in Brake's house to find Appellant rubbing her vagina on the outside of her jeans.When Appellant realized that J.G. was awake, he said, "Why don't you go into the living room with me?"J.G. told Appellant that she wanted to lay back down and Appellant left the room.J.G. then gathered her shoes and her "hoodie," and left Brake's house.

As heretofore related, following a jury trial, Appellant was convicted of one count of statutory sodomy in the first degree and was sentenced by the trial court to eight years in prison.This appeal followed.

In his sole point on appeal, Appellant maintains the trial court abused its discretion in overruling Appellant's motion in limine and "admitting evidence of [A]ppellant's alleged acts against [J.G.]."He asserts that the admission of J.G.'s testimony deprived him of his due process rights and his constitutional right to be tried only for the crime with which he was charged.He also asserts that "any probative value that this improper character evidence may have had to shed light on any material issue was clearly outweighed by its prejudicial impact and made it more likely that the jury would convict [A]ppellant on the charged offense related to [N.T.]."

Trial courts have broad discretion in determining whether to admit or exclude testimony, and an appellate court will reverse only upon a showing of a clear abuse of discretion.State v. Simmons,944 S.W.2d 165, 178(Mo. banc 1997)."`We review trial court decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'"Dunn,21 S.W.3d at 85(quotingState v. Santillan,1 S.W.3d 572, 579(Mo.App.1999))(internal quotation omitted).

It is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged.State v. Pennington,24 S.W.3d 185, 189(Mo.App.2000)."The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes."State v. Burns,978 S.W.2d 759, 761(Mo. banc 1998)."Propensity to commit a crime is not a proper purpose for admission of evidence because it `may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.'"Pennington,24 S.W.3d at 189(quotingState v. Bernard,849 S.W.2d 10, 16(Mo. banc 1993), superceded in part by§ 566.025, RSMo 1994)."`Proffered evidence will run afoul of th[is] rule . . . if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes.'"State v. Wallace,952 S.W.2d 395, 397(Mo.App.1997)(quotingState v. Hornbuckle,769 S.W.2d 89, 96(Mo. banc 1989)).

However, "[e]vidence 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. . . ."Bernard,849 S.W.2d at 13.Such evidence "is legally relevant, in that its probative value outweighs its prejudicial effect."Id.

"Bernard recognizes five categories of exceptions to the general rule prohibiting admission of evidence of uncharged misconduct and adds a sixth exception."State v. Roberts,948 S.W.2d 577, 591(Mo. banc 1997)."Such evidence is admissible if 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;⁵(5) the identity of the person charged with the commission of the crime on trial or (6) a signature modus operandi [where nearly identical incidents are so unusual and distinctive as to corroborate the victim's testimony]."Id.Roberts notes that the court in State v. Skillicorn,944 S.W.2d 877, 887(Mo. banc 1997), acknowledged "a seventh category permitting evidence of a continuation of a sequence of events that assist in painting a coherent picture of the crime."Roberts,948 S.W.2d at 591."The State, however, may not ask a defendant about unrelated criminal misconduct unless the conduct is related to the crimes with which defendant was [actually] charged."State v. Phillips,134 S.W.3d 54, 57(Mo.App.2004)."The list of exceptions to the general rule is not exclusive but, in each instance, announce a judicial conclusion that the prior-bad-acts evidence is both logically and legally relevant."Roberts,948 S.W.2d at 591;seeState v. Jacobs,939 S.W.2d 7, 10(Mo.App.1997)."This balancing of prejudicial effect and probative value lies within the sound discretion of the trial court."State v. Shaline,793 S.W.2d 167, 171(Mo.App.1990)."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.'"Burns,978 S.W.2d at 761(quotingState v. Holbert,416 S.W.2d 129, 132(Mo.1967))."Admonitions to be wary of evidence of other crimes are long standing."Pennington,24 S.W.3d at 190.

Save for certain factual circumstances set out in section 566.025 involving minors under fourteen years of age,⁶"`[i]n Missouri, the prosecution may...