State v. Sexton, WD
| Decision Date | 10 January 1995 |
| Docket Number | No. WD,WD |
| Citation | 890 S.W.2d 389 |
| Parties | STATE of Missouri, Respondent, v. John D. SEXTON, Appellant. 49298. |
| Court | Missouri Court of Appeals |
J.D. Williamson, Jr., Independence, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.
Before FENNER, C.J., HANNA and LAURA DENVIR STITH, JJ.
This case involves the admission of testimony of uncharged sexual misconduct in the 1994 trial of John D. Sexton on one count of rape and five counts of sodomy. Mr. Sexton was found guilty by the jury and sentenced to consecutive prison terms totalling forty years. The State admits that the admission of evidence of prior sexual misconduct to show the defendant's propensity to commit the crime constituted error under State v. Bernard, 849 S.W.2d 10, 16-17 (Mo. banc 1993). The State argues that remand for a new trial on all issues is unnecessary, however, because the same evidence will be admissible in any new trial. Thus, remand would be pointless. We disagree, and remand for a new trial on all issues.
Mr. Sexton's convictions arose from incidents occurring in 1990 and 1991, and involving his stepdaughter, Rachel. Rachel, who was under age fourteen at the time of the incidents, accused her step-father of sexually abusing her from the time she was age nine or ten until shortly before her fourteenth birthday. The alleged abuse ranged from fondling to sodomy and rape. 1
To bolster its case, the State offered the testimony of Mr. Sexton's two other stepdaughters from an earlier marriage as to uncharged sexual misconduct which they alleged he committed with them during the earlier marriage. 2
Case law regarding the admissibility of evidence of a defendant's prior sexual misconduct in a prosecution for a sexual offense was changed significantly by the Missouri Supreme Court's decision in Bernard, 849 S.W.2d at 16-17, a short time before the trial of this case. As is set out in detail in Bernard, evidence of other, uncharged misconduct has historically been inadmissible in Missouri unless admissible to establish motive, intent, absence of mistake, common scheme or plan or identity. Id. at 13-14.
State v. Lachterman, 812 S.W.2d 759, 768 (Mo.App.1991), cert. denied, 503 U.S. 983, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992), recognized that, over time, Missouri courts had interpreted the exceptions for motive, identity, and common scheme or plan more broadly than was warranted. They appeared to have done so in order to justify admission of evidence which, in reality, had the effect of showing that defendant had a propensity to engage in sexual misconduct and so probably acted in accordance with that propensity with the current victim.
While Lachterman disapproved of these prior cases' misuse of the recognized exceptions, it articulated a new exception which it called the "depraved sexual instinct" exception. Under that exception, evidence of the defendant's repeated acts of sexual abuse of children of the same sex as the victim near in time to the acts charged was admissible to demonstrate a propensity for sexual aberration and a depraved sexual instinct. 812 S.W.2d at 768-69.
The propriety of Lachterman 's "depraved sexual instinct" exception was unanimously rejected by the Missouri Supreme Court in Bernard, 849 S.W.2d at 16-17. Bernard did recognize a very narrow situation in which such evidence could be admitted, however: when the evidence is true "signature modus operandi /corroboration" evidence. In order to fall within the "signature" exception, "[e]vidence of prior sexual misconduct that corroborates the testimony of the victim should be nearly identical to the charged crime and so unusual and distinctive as to be a signature of the defendant's modus operandi." Bernard, 849 S.W.2d at 17.
The State concedes, and we agree, that admitting the prior sexual misconduct evidence below constituted error under Bernard. Although some similarities existed in the sexual abuse described by Rachel, Lisa, and Christy, the methodology involved in each incident lacked the requisite uniqueness to identify Mr. Sexton as the wrongdoer under the "signature modus operandi " exception. Admitting testimony of Mr. Sexton's prior sexual abuse of Lisa and Christy thus violated the holding of Bernard.
The State suggests that in the event this cause is remanded for a new trial because of the erroneous admission of evidence of prior sexual misconduct, the only issue on remand should be the applicability of a newly enacted sex crimes statute, Section 566.025. That section originated as Senate Bill 693, was approved by our General Assembly on July 14, 1994, and became effective January 1, 1995. The new enactment appears to legislatively overrule the Bernard exception and to allow admission of uncharged sexual misconduct evidence if, but only if, specified circumstances are present. Section 566.025 provides in its entirety:
In prosecutions under chapters 566 or 568 involving a victim under fourteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he is charged provided that such evidence involves acts that occurred within ten years before or after the act or acts for which the defendant is being tried. 3
The State suggests section 566.025 simply changes the rules of evidence without authorizing conviction on less or different proof. If so, the statute is procedural in nature, and can be applied to all persons...
To continue reading
Request your trial
-
Sexton v. Kemna
...term of forty years. On appeal, the Missouri Court of Appeals overturned the convictions and remanded for a new trial. State v. Sexton, 890 S.W.2d 389, 392 (Mo.App.1995). At the second trial, Sexton was again charged with one count of rape and five counts of sodomy.1 R.C. testified that Sex......
-
State v. McNaughton, WD
...the state benefits by reviewing all reasonable inferences from the evidence, and contrary inferences are disregarded. State v. Sexton, 890 S.W.2d 389, 391 (Mo.App.1995). Mr. McNaughton argues that insufficient evidence was presented to show that he actually or constructively possessed a con......
-
State v. Sexton
...a twenty-year sentence for rape. Appellant appealed and this court reversed and remanded the cause on February 1, 1995. State v. Sexton, 890 S.W.2d 389 (Mo.App.1995). On retrial, appellant was acquitted of rape but convicted by jury of five counts of sodomy, § 566.060.3, and was sentenced t......
-
State v. Bolds
...banc 1992). The State is given the benefit of all reasonable inferences, and any contrary inferences are disregarded. State v. Sexton, 890 S.W.2d 389, 391 (Mo.App.1995). To make a submissible case of arson in the second degree, the state must prove that 1) a building was on fire, 2) the fir......