State v. Lutes, WD 80030

CourtCourt of Appeal of Missouri (US)
Citation557 S.W.3d 384
Docket NumberWD 80030
Parties STATE of Missouri, Respondent, v. Terry Lee LUTES, Appellant.
Decision Date19 June 2018

Joshua D. Hawley, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Amy M. Bartholow, Assistant Public Defender, Columbia, MO, Attorney for Appellant.

Before Division IV: Mark D. Pfeiffer, Chief Judge, and Alok Ahuja and Anthony Rex Gabbert, Judges

Mark D. Pfeiffer, Chief Judge

Following a jury trial, Mr. Terry Lee Lutes ("Lutes") was found guilty of two counts of child molestation in the first degree, for which Lutes was sentenced by the Circuit Court of Caldwell County, Missouri ("trial court"), to two consecutive twelve-year terms of imprisonment. Lutes appeals.

Lutes argues on appeal that the trial court abused its discretion in: (1) admitting evidence of his three prior sex crimes involving minor females; (2) refusing to permit him from asking a question during voir dire regarding his prior convictions; and (3) admitting evidence of the child victim’s out-of-court statements. We affirm.

Factual Background1

In March of 2014, while staying with his daughter and granddaughter (L.B.2 ), Lutes placed his finger in L.B.’s vagina, removed his finger to lick it, and then re-inserted his finger in L.B.’s vagina. Thereafter, he compelled L.B. to hold his penis and masturbate him.

The State charged Lutes with two counts of child molestation in the first degree, as a prior offender, for manually touching the vagina of his then six-year-old granddaughter, L.B., and for forcing L.B. to touch his penis.

Prior to trial, the State moved to be allowed to admit evidence pursuant to article I, section 18(c) of the Missouri Constitution. The State presented certified copies of three previous pleas of guilty Lutes had made to sexual crimes involving minors. The pleas of guilty resulted in the following: (1) a 2004 conviction for statutory rape in the second degree for having sexual intercourse with a sixteen-year-old victim in 2001; (2) a 1994 conviction for two counts of sexual assault in the first degree for having sexual intercourse with a fourteen- or fifteen-year-old victim in 1994; and (3) a 1993 conviction for sexual assault in the first degree for having sexual intercourse with a fourteen-year-old victim in 1993.

Lutes objected to the admission of the evidence, arguing, as relevant to his appeal, that the prior convictions were not legally relevant to the charged crime because they were too remote in time and dissimilar in circumstances. The trial court concluded that the propensity evidence was both logically and legally relevant and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Thus, the evidence of the three convictions was admitted at trial over Lutes’s objection.

As Lutes was aware that the trial court intended to allow his conviction history to be admitted at trial, his trial counsel requested that he be allowed to ask the following question as "his record" of the question he wished to ask during voir dire of the venire panel:

I anticipate that the Prosecutor Joe will present during the course of this trial evidence of Terry Lutes' prior criminal conviction history regarding child molestation of other young women. Would that fact cause anyone here knowing that that could be presented to you as jurors present a problem in any one of you being fair and impartial as jurors in this case?

The State objected, and the trial court responded that, "I'm not going to let you ask that [question]." (Emphasis added.) Defense counsel did not submit an alternately phrased proposed question.

At the first trial, L.B. was present and testified, but that proceeding resulted in a mistrial. In anticipation of the second trial, the subject of the instant appeal, the State made numerous attempts at ensuring L.B.’s presence at the trial, including service of a subpoena by the Wabaunsee County, Kansas Sheriff’s Department commanding her to appear and testify and obtaining an order from a judge in Kansas to compel her attendance. A return of service showed that the order was served to L.B.’s address. L.B.’s father, however, informed the State that he refused to bring L.B. back to Missouri to testify. Hence, at the second trial, L.B. did not appear. The State argued that L.B. was, therefore, "unavailable" to testify when various objections were made by Lutes to the admission of evidence requiring L.B.’s unavailability at trial, including a video-recording of L.B.’s testimony at the first trial. The trial court admitted the evidence.

The evidence at the second trial was as follows. In 2014, L.B., her mother, and her half-brother went to live with her half-brother’s grandparents, John Giese ("Giese") and Lynda Sloan ("Sloan"). L.B. and her family lived downstairs while Giese and Sloan lived upstairs. In March of 2014, Lutes came to stay with L.B.’s family for a few days. Giese walked downstairs one of those mornings and saw L.B. sleeping on Lutes’s bare chest, which bothered Giese.

In L.B.’s video-recorded testimony from the first trial, L.B. testified:

[W]hen it was bedtime, [Lutes] said, "Come here," and I did because I was really tired and I just woke up to get a glass of water.... So he grabbed my hand and he put it down his pants, and then he rubbed it on his bad spot, and then he took his finger and he licked it and he put it in my private—my bad spot, and—he started to lick it again—and he kept doing it.

The Sunday after Lutes had left, L.B.’s mother asked Giese to come downstairs. Giese testified that L.B. told him that Lutes "in the middle of the night put his finger down—down there and ... she said he shook, and—and he put ... his finger in her, and then stuck it in his mouth and licked it." He also testified that L.B. indicated that Lutes also had her play with his penis. Giese accompanied L.B. and her mother to the local police department. L.B. was taken to St. Joseph, Missouri, for a forensic interview and to Children’s Mercy Hospital for a SAFE3 exam.

Forensic interviewer Trenny Wilson ("Wilson") testified about the interview she conducted with L.B., which was video-recorded. In the video, L.B. described Lutes touching the inside of her "peepee" with his finger and putting his finger in his mouth and then sliding it back into her "skin." She said Lutes also put her hand in his pants and forced her to touch his "boy’s bad spot."

Lutes presented no evidence in his defense. He was found guilty on two counts of child molestation in the first degree and sentenced to twelve years of imprisonment on each count to be served consecutively. Lutes now appeals.

I.

In Point I, Lutes argues the trial court abused its discretion in allowing the State to introduce evidence of his three prior convictions for statutory rape and sexual assault, under article I, section 18(c) of the Missouri Constitution, because he contends the evidence was not legally relevant in that any probative value was substantially outweighed by the danger of unfair prejudice.

The trial court’s decision to admit Lutes’s three prior convictions for sexual assault of female minors under article I, section 18(c), like all claims of evidentiary error, is reviewed for an abuse of discretion and will not be disturbed unless this court finds that the trial court’s exercise of discretion was clearly against the logic of the circumstances. State v. Prince , 534 S.W.3d 813, 818 (Mo. banc 2017). "[I]f reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion."

Anglim v. Mo. Pac. R.R. Co. , 832 S.W.2d 298, 303 (Mo. banc 1992). Further, this court reviews the decision of the trial court for prejudice, not mere error, and will reverse only if we find that the error was so prejudicial as to deprive the defendant of a fair trial. Prince , 534 S.W.3d at 818.

Propensity evidence is "evidence of uncharged crimes, wrongs, or acts used to establish that a defendant has a natural tendency to commit the crime charged." State v. Shockley , 410 S.W.3d 179, 193 (Mo. banc 2013) (internal quotation marks omitted). It is well established that "proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial." State v. Primm , 347 S.W.3d 66, 70 (Mo. banc 2011) (internal quotation marks omitted). The law permits the State to try a defendant only for "the offense for which he is on trial" and "[t]his precludes the State from unjustifiably introducing evidence of a defendant’s prior, uncharged crimes or bad acts." State v. Batiste , 264 S.W.3d 648, 650 (Mo. App. W.D. 2008) (citing State v. Ellison , 239 S.W.3d 603, 606 (Mo. banc 2007) ).

Such evidence may be admitted for "purposes other than to establish the defendant’s propensities" to commit the charged offense. Id. at 651. Such purposes include establishing "motive, intent, absence of mistake or accident, identity, or 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." Id.

Evidence of prior criminal acts may be admissible for these alternate purposes only if [it] is both "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, and if [it] is legally relevant, in that its probative value outweighs its prejudicial effect."

Id. (quoting Ellison , 239 S.W.3d at 607 ).

These general standards, however, have been modified by recent changes to the Missouri Constitution in cases involving crimes of a sexual nature against minors. Article I, section 18(c) of the...

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