State v. Jones, 58181

• Decision Date: 26 May 1992
• Docket Number: No. 58181,58181
• Citation: 835 S.W.2d 376
• Parties: STATE of Missouri, Respondent, v. Ivory JONES, Appellant. Ivory JONES, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 376

835 S.W.2d 376

STATE of Missouri, Respondent, v. Ivory JONES, Appellant.

Ivory JONES, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 58181.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 26, 1992.

Application to Transfer Denied Sept. 22, 1992.

Susan L. Hogan, Asst. Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

In this jury-tried case, defendant, Ivory Jones, appeals his convictions of two counts of rape, and one count of sodomy. Defendant also appeals from the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Defendant was sentenced as a persistent sexual offender to three concurrent thirty-year terms of imprisonment without parole. We affirm.

Defendant does not challenge the sufficiency of the evidence. A.B. ¹, defendant's sixteen-year-old step-daughter, testified that on five or six occasions between January and February, 1988, defendant forced her to engage in sexual intercourse with him. During that time, defendant also forced A.B. to engage in acts of sodomy. A.B. stated some of the acts occurred after defendant forced her to remain home from church, while they were alone in the house. The acts were accompanied by threats that defendant would kill A.B.'s mother.

In his first point, defendant contends the trial court erred in overruling his pretrial motions and trial objections to exclude the testimony of A.B.'s sister, E.F., that defendant "had sexually abused her several years prior to the conduct charged in this case...."

E.F. testified that during a period of four to five years beginning in 1981, defendant at times forced her to engage in sexual intercourse and acts of sodomy with him when she and defendant were alone in the house after defendant forced her to remain home from school. During that time, defendant threatened E.F. that he would kill her mother.

Defendant asserts the testimony was "improper evidence of other uncharged crimes." "While 'evidence of similar sex crimes against other persons is inadmissible for purposes of showing propensity,' such evidence 'is admissible if it tends to establish motive, intent, identity, absence of mistake or accident, or a common scheme or plan.' " State v. Christeson, 780 S.W.2d 119, 122 (Mo.App.1989) (quoting State v. Kerr, 767 S.W.2d 344, 345 (Mo.App.1989)). The sexual acts about which E.F. testified were similar to the sexual acts for which defendant was on trial. A.B. testified the sexual acts had taken place three or four times while she and defendant were alone in the house; similarly, defendant forced E.F. to engage in sexual acts when he was alone with her in the house. Further, there was consistent testimony that defendant's acts of sexual intercourse and sodomy with A.B. and E.F. were accompanied by threats he would kill his step-daughters' mother. These circumstances demonstrated defendant's common scheme or plan to sexually abuse his stepdaughters. See State v. Koster, 684 S.W.2d 488, 490 (Mo.App.1984); State v. Askew, 822 S.W.2d 497, 500 (Mo.App.1991).

Defendant argues the evidence "was too remote in time from the acts charged to have any probative value and the evidence therefore lacked relevance," because the "alleged acts involving [E.F.] started seven years prior to the onset of the alleged acts against [A.B.], and ended at least two years before the alleged acts against [A.B.]." Defendant contends that unlike the evidence of other acts in State v. Muthofer, 731 S.W.2d 504, 508-09 (Mo.App.1987), the evidence in this case "demonstrates neither a 'persistent effort' nor a 'systematic and regular' course of conduct." We need not determine whether the evidence demonstrates such an effort or course of conduct. As stated in Muthofer, "[s]uch matters as remoteness of time go to the weight to be given to the testimony and not its admissibility." Id. at 509; see also, State v. Simerly, 463 S.W.2d 846, 848 (Mo.1971).

Defendant also argues that the passage of time between the acts involving E.F. and the acts involving A.B. defeats application of the "depraved sexual instinct" exception to the rule excluding evidence of other crimes. That exception was recognized in State v. Lachterman, 812 S.W.2d 759, 768-69 (Mo.App.1991) which was decided after the present case was tried. We need not decide whether that exception may be applied retroactively, because the testimony of A.B. and E.F. was properly admitted under the "common scheme or plan exception" applied in Christeson and recognized by this court at the time of defendant's trial. The trial court did not err in admitting the challenged testimony. Point one is denied.

Defendant's second point alleges the trial court plainly erred in overruling defendant's objection to a portion of the state's closing argument and in denying defendant's subsequent request for a mistrial.

During closing argument, defense counsel stated:

We talked earlier during voir dire about the lawyers and their role here and how this is not about lawyers, and it's not. This is about Ivory Jones.

[The prosecuting attorney] wants to win this case. That's his job. I want to win this case. That's my job. And I've got Ivory's life literally in my hands.

But if you all do your job and follow the instructions as you've sworn you would, if you hold the State to its burden of proof beyond a reasonable doubt as to each and every element of the offenses charged, if you keep your promise to yourself, to the lawyers, to this community, that you would follow the law and hold the State to its burden, [the prosecuting attorney] nor I win individually.

We all win. The community wins. The law will be upheld.

The following occurred during the state's rebuttal argument:

[Prosecutor]: It's just not fair to the people if you decide the case based on something other than the evidence. And that's what I told you in voir dire. The only thing I'm going to ask you is to decide the case based on the evidence.

Now he tells you it's my job to win cases. Thank God, that's not my job. Because in the United States of America it would be a horrible system if the prosecutor's job was to win cases.

In fact, he probably knows that my job--and I'm sworn. I have taken an oath--my job is to obtain justice. If I believed somebody is not guilty I'm under a sworn obligation not to--

[Defense counsel]: I'll object to the personalization as to the prosecutor's belief. We're all sworn as attorneys in this case.

[Prosecutor]: He opened the door.

THE COURT: Overruled.

[Prosecutor]: Let me reiterate that because that's a very important point.

If I feel that anybody--you wouldn't have it any other way. Could you imagine a prosecutor's office any other way?

If I feel there is any doubt that this man is not guilty I will not prosecute this case. I've got too many cases. There is no need for me to prosecute a case where I absolutely am certain the guy is not guilty, and I won't go into court unless I'm certain the guy is guilty.

That's my job, to obtain justice, and if I know he's guilty I'll prosecute the case to the fullest extent of my abilities and the people of the State of Missouri deserve that, and I don't apologize for that.

But, I'll only do it if I know he's guilty.

[Defense counsel]: Your Honor, I'll object to that whole thing.

THE COURT: Sustained.

[Defense counsel]: I would ask that the jury be instructed to disregard it and move for a mistrial on--

THE COURT: The jury will be instructed to disregard the last comments of counsel. I will overrule your motion for mistrial.

Defendant contends the state's argument "implied to the jury that the prosecuting attorney had special knowledge of facts which, if the jury but knew those facts, would cause the jury to return a verdict of guilty." Defendant acknowledges his claims asserted in this point were not preserved for appellate review, because those claims were not raised in his motion for new trial. Accordingly, our review is limited to determining whether the trial court's rulings constituted plain error affecting substantial justice and resulting in manifest injustice or a miscarriage of justice. Rule 30.20.

The prosecutor's argument was retaliatory in nature. Defendant concedes, "To the extent that the prosecutor's argument addressed only the question of whether the prosecutor's job is to win cases, that argument was not improper." (Defendant's emphasis.) Defendant asserts, however, that "once the prosecutor stepped into the realm of his personal beliefs as to the guilt or innocence of any defendant, that argument became improper and an objection would properly be sustained."

Although "[a]rgument in retaliation may go further than would be allowed in the first instance," State v. Talbert, 800 S.W.2d 748, 749 (Mo.App.1990), "[t]here are limits as to how far the prosecutor can go in retaliation." State v. Evans, 820 S.W.2d 545, 547 (Mo.App.1991).

In Evans this court reversed the defendant's conviction and remanded for a new trial in light of the prosecutor's "deliberate and prejudicial statement that if Defendant were innocent he would not bring a charge and would not try the case...." Id. at 548. We held, "It is improper for the prosecutor to express his belief of a defendant's guilt to the jury in such a way that it implies knowledge on his part of facts not in evidence pointing to the [d]efendant's guilt." Id. at 547.

There is no indication in Evans that review of the claim was limited to plain error. Therefore, Evans does not control our plain error review of the present case. "[A]lleged errors in closing arguments will not justify relief under plain error unless they are determined to have a decisive effect on the jury." State v. Motley, 740 S.W.2d 313, 316 (Mo.App.1987). We do not find the prosecutor's argument had such a decisive effect. Therefore, no manifest injustice resulted from the...