State v. McElroy

• Decision Date: 13 January 1975
• Docket Number: No. 9627,9627
• Citation: 518 S.W.2d 459
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leonard Roy McELROY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 459

518 S.W.2d 459

STATE of Missouri, Plaintiff-Respondent, v. Leonard Roy McELROY, Defendant-Appellant.

No. 9627.

Missouri Court of Appeals, Springfield District.

Jan. 13, 1975.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Robert E. Yocom, Pineville, Robert W. Evenson, Pineville, for defendant-appellant.

Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

By information filed March 5, 1973, in the Circuit Court of Polk County, it was charged defendant was guilty of incest in that 'on the 13th day of August, 1971, (defendant) did . . . commit fornication with . . . (h)is daughter' M, 'age 14 (now 16) years.' § 563.220 RSMo 1969, V.A.M.S. The jury failed to agree upon punishment after finding 'the defendant guilty as charged in the Information,' so the court assessed and declared the punishment to be five years' imprisonment and rendered judgment accordingly. Rule 27.03, V.A.M.R. Defendant appealed.

In substance, M testified that defendant first had intercourse with her the week of August 13, 1971. She said defendant repeated the act twice thereafter in the next two weeks but that nothing of this nature occurred after the 'later (sic) part of August (1971).' Over defendant's repeated and continuing objections, the trial court permitted another daughter, P, to testify during the state's case-in-chief that between the time she was 12 and 14 years of age (she was 15 when the trial was held August 22, 1973) defendant had 'a whole bunch of times . . . put his hands in my pants . . . played with my bus'th (bust)' and threatened 'he was going to screw me before I was fifteen.'

The sole point relied on by defendant in this appeal is that the trial court erred in admitting testimony tending to show that he was guilty of crimes separate and distinct from the one charged by having attempted or threatened incest on or by performing acts of lascivious familarity with a person other than the prosecutrix.

Even though they are of the same nature as the one charged in the information, (State v. Hudson, 478 S.W.2d 281, 282 (Mo.1972)), proof of the commission of separate and distinct crimes generally is not admissible unless proof thereof has a legitimate tendency to establish the defendant's guilt of the particular charge for which he is on trial. If improperly related to the cause on trial, testimony of other crimes for which defendant may be guilty violates his right to be fairly tried on the offense for which he is charged. State v. Shilkett, 356 Mo. 1081, 1086, 204 S.W.2d 920, 922--923(1) (1947). This rule, as most, has exceptions which permit evidence of other offenses to prove the specific crime charged when such tends to establish (a) motive, (b) intent, (c) absence of accident or mistake, (d) a common plan or scheme embracing the commission of two or more crimes so related one to another that proof of one tends to establish the other, or (e) the identity of the person charged with the commission of the crime on trial. State v. Mitchell, 491 S.W.2d 292, 295(1) (Mo. banc 1973); State v. Holbert, 416 S.W.2d 129, 132(4) (Mo.1967). The acid test of whether evidence of other distinct crimes falls within any of the exceptions, supra, "is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But 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. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected." State v. Reese, 364 Mo. 1221, 1227, 274 S.W.2d 304, 307 (banc 1955); State v. Boyer, 476 S.W.2d 613, 616(1) (Mo.1972). Trials of charges for which there is a human abhorrence should be conducted with scrupulous fairness to avoid adding other prejudices to that which the charge itself produces. State v. Kornegger, 363 Mo. 968, 977, 255 S.W.2d 765, 769--770 (1953); State v. Richardson, 349 Mo. 1103, 1114, 163 S.W.2d 956, 962 (1942).

This is not a case where evidence relating to defendant's conduct with a person other than the prosecuting witness was of a continuous nature so as to be inseparable, in fact, from the crime charged (State v. Parton, 487 S.W.2d 523, 527(9) (Mo.1972)), nor where the offense against the other person was perpetrated concomitant with that against the prosecutrix (State v. Griffin, 497 S.W.2d 133, 135(1) (Mo.1973)), nor a case where evidence of prior criminal acts between the same parties tends to make it probable they committed the specific act charged because such proof constitutes the foundation of an antecedent probability. State v. Lebo, 339 Mo. 960, 965, 98 S.W.2d 695, 698--699 (1936), citing 'State v. Pruitt (incest), 202 Mo. (49) loc.cit. 53, 100 S.W. (431), loc.cit. 432, 10 Ann.Cas. 654.' ¹ Furthermore, the state in this case did not rely upon circumstantial evidence and the defendant's identity was never an issue in the cause. If the state's evidence in the instant case was believable, the facts relied upon as the basis for the specific charge filed left no room for supposing the existence of an accident or mistake. Defendant was bound to know the nature and character of his act, which act itself carried with it motive and intent (State v. Spinks, 344 Mo. 105, 114, 125 S.W.2d 60, 64--65(6--9) (1939)), and evidence of similar acts threatened, committed or attempted with a person other than prosecutrix would not logically tend to show motive, intent, malice or a general plan or scheme to commit the crime for which defendant was on trial. State v. Hayes, 356 Mo. 1033, 1037, 204 S.W.2d 723, 725 (1947). Ergo, testimony of what defendant may have attempted or committed with a daughter other than prosecutrix, would not lend itself to the necessity of invoking any exception to the general rule, supra. State v. Cutler, 499 S.W.2d 387, 388(2) (Mo.1973).

For examples of cases involving similar sex crimes see State v. Bowman, 272 Mo. 491, 500--501(4, 5), 199 S.W. 161, 164(4, 5) (1917), where testimony that defendant, charged with statutory rape, had been criminally intimate with another underage female was held prejudicially erroneous; State v. Smith, 250 Mo. 274, 277, 157 S.W. 307(2) (1913), holding it reversible error for the court to permit evidence of assault upon another girl where defendant was charged with assault to commit rape upon a minor; State v. Horton, 247 Mo. 657, 666, 153 S.W. 1051, 1054(5) (1913), where, in prosecuting a male school teacher for rape of a minor pupil, it was held error to permit the state to show that defendant had committed an independent assault upon a different pupil; and State v. Teeter, 239 Mo. 475, 485--486, 144 S.W. 445, 447--448(5, 6) (1912), where testimony by a woman other than prosecutrix that defendant had seduced her under promise of marriage was deemed to be highly prejudicial in a case wherein defendant was charged with seducing prosecutrix under a like promise.

The rule excluding evidence of similar sex offenses between defendant and a person other than the prosecuting witness extends to proof of threat, intention or willingness on the part of the accused to commit such other crime, and in State v. Atkinson, 285 S.W.2d 563, 567(5) (Mo.1955), it was reversible error for the trial court to permit the state to adduce on direct examination of a person other than the prosecuting witness that defendant had told the witness he would commit upon him the same sodomitic acts he had committed on the prosecuting witness.

In ...