State v. Vorhees

• Decision Date: 19 February 2008
• Docket Number: No. SC 88553.,SC 88553.
• Citation: 248 S.W.3d 585
• Parties: STATE of Missouri, Respondent, v. Shane A. VORHEES, Appellant.
• Court: Missouri Supreme Court

248 S.W.3d 585

STATE of Missouri, Respondent, v.Shane A. VORHEES, Appellant.

No. SC 88553.

Supreme Court of Missouri, En Banc.

February 19, 2008.

Rehearing Denied April 15, 2008.

Ellen H. Flottman, Office of the Public Defender, Columbia, MO, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Jayne T. Woods, Shaun J. Mackelprang, Assistant Attorneys General, Jefferson City, MO, for Respondent.

MICHAEL A. WOLFF, Judge.

Introduction

The question presented here is whether evidence of other, uncharged offenses can be admitted in a criminal trial — not to establish the identity of the offender but to corroborate the testimony of the alleged victim that the offense occurred.

This Court in State v. Ellison held that section 566.025¹, which authorized such evidence, is unconstitutional, on the grounds that evidence of uncharged crimes deprives the defendant of the right to be tried only on the crime charged.239 S.W.3d 603(2007)."Evidence of a defendant's prior criminal acts,"this Court said, "when admitted purely to demonstrate the defendant's criminal propensity, violates one of the constitutional protections vital to the integrity of our criminal justice system."

The state relies upon section 566.025 and upon a "signature modus operandi exception" to the general rule that evidence of prior uncharged crimes is inadmissible.²Because this Court invalidated section 566.025 in Ellison, the only remaining issue of law in the present case is whether the trial court's admission of the evidence can be upheld, without violating the Missouri Constitution, under a "signature modus operandi exception" solely to corroborate the testimony of the alleged victim.

Facts and Procedural History

S.W. testified that her stepfather, Shane Vorhees, repeatedly assaulted her sexually for a two-year period beginning when she was 13 years old.She testified that during the assaults, Vorhees would use his saliva as a lubricant by spitting on his hand, rubbing his penis and then placing his penis in S.W.'s anus or vagina.Once, Vorhees placed his penis in her mouth and urinated.At other times, Vorhees would place his penis in S.W.'s mouth and ejaculate.After S.W. told her mother about her husband, Shane Vorhees's, conduct, Vorhees was indicted for first-degree statutory rape and first-degree statutory sodomy.He was tried, found guilty and sentenced.

The issue in this appeal is whether the trial court properly admitted evidence of other uncharged sexual conduct with another minor to help prove that Vorhees committed the offenses in this case.

Prior to trial, the state made a motion to admit the testimony of witnesses who would provide evidence that the defendant had committed other charged or uncharged crimes of a sexual nature involving victims under 14 years of age.The trial court suspended ruling pending an offer of proof by the state that the probative value of the evidence outweighed its prejudicial effect.The state filed a second motion to admit the testimony of witnesses pursuant to section 566.025, this time naming J.W. and N.W. (the mother of J.W.) as witnesses who would testify that J.W. was the victim of prior uncharged sexual abuse by Vorhees.

At a pretrial hearing, J.W. testified that when she was six years old, her family lived in a trailer park.J.W. lived near Vorhees' trailer, and Vorhees would often visit J.W.'s trailer.J.W. described an incident in which Vorhees entered her bedroom and restrained her.Vorhees, she said, then spit on his hand, using the saliva as a lubricant, and attempted to insert his penis in J.W.'s vagina.Vorhees then urinated in J.W.'s mouth.The state moved to admit J.W.'s testimony under both section 566.025 and the "signature modus operandi" exception to the general ban on evidence of prior bad acts.The trial court allowed the testimony at trial, finding that the similarities between the allegations made by S.W. and the events described by J.W. rendered her testimony more probative than prejudicial, in accordance with section 566.025.The trial court, though it used the statutory criteria, did not specify under which of the state's suggested theories — signature modus operandi or section 566.025 — it was sustaining the motion to admit the testimony.Vorhees filed a pretrial motion asking the court to declaresection 566.025 unconstitutional, which was overruled.Vorhees also objected to the constitutionality of section 566.025 during J.W.'s trial testimony and to the potentially prejudicial effect of the testimony.

The jury returned a verdict of guilty on both counts, and the trial judge sentenced Vorhees to two consecutive terms of imprisonment of thirty years.

Vorhees appeals the constitutionality of both section 566.025 and the use of the signature modus operandi exception to corroborate an alleged victim's testimony.³

Constitutional Principles

The "well-established general rule" concerning the admission of evidence of prior criminal acts "is 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. Reese,364 Mo. 1221, 274 S.W.2d 304, 307(1954).The rationale underlying this rule is grounded in the view that "[e]vidence of other crimes, when not properly related to the cause on trial, violates defendant's right to be tried for the offense for which he is indicted."State v. Sladek,835 S.W.2d 308, 311(Mo. banc 1992)(internal citation omitted).This right arises from the guarantee of article I, sections 17and18(a) of the Missouri Constitution that a defendant has the right to be tried only on the offense charged.State v. Burns,978 S.W.2d 759, 760(Mo. banc 1998).Article I, section 17 provides that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information."Article I, section 18(a) states "[t]hat in criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation...."

There are a number of exceptions to the general ban on evidence of prior criminal acts.These exceptions "are as well established as the rule itself" and include: (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 than proof of one tends to establish the other; and (5) the identity of the person charged with the commission of the crime on trial.Sladek,835 S.W.2d at 311.Evidence of prior bad acts is also "admissible if offered to rebut the [defendant's] volunteered assertions from the stand that he or she has never been guilty of any misconduct."John O'Brien, Missouri Law of Evidence (4th ed.2002)(citingState v. Whitt,592 S.W.2d 316, 317(Mo. App.1979)).However, this exception for purposes of impeachment becomes potentially relevant only if the defendant chooses to testify, which Vorhees did not.

In addition to these "well-established" exceptions, the signature modus operandi exception, for corroboration, has emerged in this Court's jurisprudence as an exception to the general rule banning the admission of evidence of prior criminal acts.The signature modus operandi exception was first discussed by Judge Thomas in his concurring opinion in State v. Sladek,835 S.W.2d at 316-18.Judge Thomas provided a general description of the requirements for signature modus operandi evidence of prior crimes, stating that such evidence would be admissible "to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts.The device used must be so unusual and distinctive as to be like a signature."Sladek,835 S.W.2d at 316(citingState v. Koster,684 S.W.2d 488, 491(Mo.App.1984))(internal citation omitted).Judge Thomas conceived of two forms of the signature modus operandi exception; one, as a derivative of the identity exception, and the other, which Judge Thomas called "signature modus operandi/corroboration."Sladek,835 S.W.2d at 316.Since there is no issue as to Vorhees' identity, it is the signature modus operandi corroboration exception that is at issue in the present case.

The classic example of the signature modus operandi identity exception discussed by Judge Thomas is the case of Jones v. State,460 So.2d 1384(Ala.Cr.App.1984).In Jones,the defendant was charged with leading his victim into an empty barn, where the victim was robbed at gunpoint by a second man who used a "long-barreled pistol" and wore a Halloween mask and a black wig.Sladek,835 S.W.2d at 315-16(citingJones v. State,460 So.2d 1384(Ala.Cr.App.1984)).The court allowed testimony from a criminal investigator who testified that two weeks after the first robbery, he and another investigator went to a farm and posed as cattle buyers.Id.The investigator was met by the defendant, who took him to a barn where the investigator was robbed at gunpoint by a man holding a long-barreled pistol and wearing a Halloween mask and a black wig.Id.The signature modus operandi identity exception was used to admit the evidence of the second offense in order to connect the identity of the defendant with the identity of the perpetrator of the nearly-identical charged offense.Id.In Jones,the defendant did not dispute whether or not the crime had occurred, but rather, whether he was the person who had perpetrated the crime.Evidence of the uncharged offense was relevant to establish the defendant's identity.

The signature modus operandi identity exception is simply a more specific form of the already established identity exception.Under the signature modus operandi identity exception, evidence of the defendant's prior criminal acts is not offered to prove his propensity to...