State of Missouri, Respondent, vs. David K. Duncan, Sr., Appellant.

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STATE OF MISSOURI,

Respondent,

v.

DAVID K. DUNCAN, SR.,

Appellant. ) ) ) ) ) ) ) ) ) No. ED113148

Cause No. 24SF-CR00380

Filed: January 27, 2026

APPEAL FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY The Honorable Wendy Wexler Horn, Judge Opinion David K. Duncan, Sr. (Duncan) appeals from the trial court's judgment following jury convictions on three counts of first-degree statutory rape and six counts of second- degree child molestation. Duncan raises one point on appeal. He argues the trial court abused its discretion by admitting alleged propensity evidence from Victim, Duncan's granddaughter, who testified, that while he was sexually abusing her, Duncan told her he had sex with his wife when she was twelve or thirteen, the same age range as Victim at the time of the initial offense. Duncan claims prejudice as a result of the admission. Because this evidence is not propensity evidence and is logically and legally relevant, we find no error. Accordingly, we affirm the trial court's judgment.

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Background The evidence, in the light most favorable to the verdicts, is as follows: 1

Before 2013, Victim and her younger brother (Brother) lived in Texas with their parents. Due to parental neglect and substance abuse Victim and Brother spent two years in Texas' foster care system. In 2013, when Victim was eight and Brother was three, Duncan brought them from Texas to live with him in Missouri. Unlike Victim's parents, Duncan provided Victim and Brother food, clothing, and stable housing. Duncan also gifted Victim a cell phone. Duncan habitually sexually abused and raped Victim from November 2018 to June

1. Duncan began abusing Victim, when she was thirteen, and he was sixty-seven.

During these two and a half years, Duncan required Victim to sleep in his bedroom almost every night, while Brother slept in his own room. Duncan's abuse of Victim began with him touching her vagina, and eventually proceeded to full intercourse. At the initial stages of abuse, when Duncan was just touching Victim's vagina, he told her that he had sex with his wife when she was only twelve or thirteen, which was the same age range of Victim at the time of the initial touching. Victim stated that when Duncan touched her vagina he told her that he loved her and that he was showing her a different

1 "We are required to view the evidence in the light most favorable to the jury's verdicts." State v. Pierce, 678 S.W.3d 115, 119 (Mo. App. S.D. 2023) (citing State v. Vandergrift, 669 S.W.3d 282, 291 (Mo. banc 2023)).

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type of love. On Duncan's sixty-ninth birthday, Victim told Duncan she loved him over text. Duncan's abuse escalated and he eventually began habitually raping Victim and forcing her to perform oral sex. Victim testified that intercourse was extremely painful for her and that she cried during these assaults. Sometime in late 2019, Duncan enrolled Victim and Brother in mixed martial arts classes at a gym owned by Marie Collins (Collins), a registered nurse. Collins noticed Duncan was always observing Victim during these classes. Collins noted Duncan would be "touchy-feely" with Victim, and that he would squeeze Victim's legs while she sat next to him or would pat her butt. As a result of the confidence Victim gained from her mixed martial arts classes, she began telling Duncan "no" when he wanted to rape her. In response, Duncan would physically assault Victim or scream at her all night, preventing her from sleeping and causing her to miss school. In June 2021, Collins saw Victim and Duncan get into an argument at the gym. Duncan told Collins in reference to Victim "[w]hen she gets out of line, I'll smack that bitch in her face." Collins asked Duncan to leave, which he did, and Collins asked Victim if she would like to make a report to the police. Victim and Collins went to a police station and Victim made some disclosures about physical abuse. Victim and Brother were taken into foster care and placed with Collins and her husband. Several weeks later, Victim told Collins about the sexual abuse she endured from Duncan. An investigation ensued that resulted in the aforementioned charges. The case proceeded to trial.

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Prior to trial, Duncan filed a motion to exclude prior bad acts. During a pre-trial conference, the State said it did not expect to put on propensity evidence, rather it would put on evidence of grooming. Specifically, the State intended to elicit testimony from Victim that Duncan told her he had sex with his first wife when she was twelve or thirteen, and the purpose of this evidence was to show Duncan's process of grooming Victim prior to having intercourse with her. The trial court sustained Duncan's motion to exclude prior bad acts while acknowledging any propensity evidence would need to be objected to during trial. In the State's opening statement, the prosecutor said the following: "[Victim will] tell you ... [Duncan] would tell her about his first wife, Julie. Mr. Duncan was explaining to his granddaughter, who was at the time 12, 13 years of age, about how he took the virginity of his 12-year-old wife when he was 20, that it was normal." On direct examination, the State asked Victim if Duncan ever told her about past relationships and the following exchange occurred: Victim: He would always tell me about his first wife, Julie, and –

Defense Counsel: Your Honor, I'm going to object to this statement. I think it's more prejudicial than probative under the circumstances. I don't see what relevance it has to the issue at hand of her issues or the allegations that she's made in this case. It involves a totally separate individual and I think it resides in propensity issues, which have not been properly addressed.

Prosecutor: If it's part of the grooming process by which he had convinced her it was okay to have sex with him, I think it's very relevant.

Trial Court: It's overruled.

Prosecutor: So during this period of time when you were being touched on your vagina, you said something about Julie, and Julie was who?

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Victim: His first wife.

Prosecutor: What did he tell you about his first wife, Julie?

Victim: He told me that he took her virginity when she was just about 12 or 13 and that they got married after that and that's just how it went.

...

Prosecutor: And at the time he was telling you this, how old were you?

Victim: About 13.

Prosecutor: So the time that you're being touched he's explaining to you about how you remind him of someone else, meaning his ex-wife –

Victim: Yes

Prosecutor: deceased wife?

Victim: (Nods head.)

Prosecutor: And that they would do this too?

Victim: Yes.

To explain the concept of "grooming" to the jury, the State called the forensic interviewer, who spoke with Victim, to testify. The forensic interviewer defined grooming as "a behavior or action done by somebody to form an emotional connection with a child." The interviewer also explained that grooming involves desensitizing the child to what is about to happen, and it includes the abuser engaging the child in contact such as hugs, or sitting on the lap, or hand on the leg and then the touching escalates. In the State's closing argument, the prosecutor stated: [w]hether or not [Victim] fully understood what was going on was as wrong as we believe it is, if you take, again, into consideration he's the one who

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taught her right from wrong, he's the one who taught her about love, he's the one who taught her about what had happened, and in the concept of doing it explaining how it's normal, it's normal to have had sex with your 12-year- old-girlfriend, which became your next wife. And, of course, it's normal to tell your 12-year-old that and, at the same time, you were beginning to perpetrate on her by touching her vagina and proceeding to a rape.

After Duncan's closing argument, the State only briefly referenced Duncan's statement to Victim about his wife during its rebuttal argument. The prosecutor stated "[Duncan]'s not ashamed to share about sex with his 12-year-old previous wife [with] his granddaughter. He's not ashamed to present that as a standard of love." The jury convicted Duncan of three counts of first-degree statutory rape and six counts of second- degree child molestation. Following the jury's recommendation, the trial court sentenced Duncan to consecutive life sentences for each count of first-degree statutory rape and consecutive 15-year sentences for each count of second-degree child molestation. Duncan moved for a new trial and in his motion argued the trial court erred in admitting, over his objection, Victim's testimony about his sexual relationship with his wife. The trial court denied the motion. This appeal follows. Standard of Review "Our standard of review in addressing the admission or exclusion of evidence at trial is for abuse of discretion." State v. Newton, 689 S.W.3d 785, 789 (Mo. App. S.D. 2024) (internal quotation omitted). "A trial court has broad discretion to admit or exclude evidence at trial." State v. Antle, 670 S.W.3d 66, 71 (Mo. App. W.D. 2023) (internal quotation and quotation marks omitted). "The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances and is so arbitrary and

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unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (internal quotation omitted). "We review the evidentiary ruling of the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Thomas, 628 S.W.3d 686, 691 (Mo. App. E.D. 2021) (quoting State v. Prince, 534 S.W.3d 813, 818 (Mo. banc 2017)) (internal quotation marks omitted). "In a criminal case involving improperly admitted evidence, the test for prejudice is whether the error was outcome- determinative." Id. (internal quotation omitted). "A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence." Id. at 694 (internal quotation omitted). Discussion I. The trial court did not err in admitting Victim's testimony that Duncan told her he had sex with his wife when his wife was twelve or thirteen Duncan argues the trial court erred in admitting Victim's testimony about Duncan's sexual history with his first wife because it was inadmissible propensity evidence. The State asserts this evidence was not propensity evidence but instead evidence of grooming. We agree with the State. Victim's testimony is not propensity evidence, and it is admissible as it is both logically and legally relevant evidence of grooming.

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A. Victim's testimony does not constitute propensity evidence

Generally, a trial court should not admit propensity evidence of the charged offense. State v. Stafford, 589 S.W.3d 705, 711–12 (Mo. App. E.D. 2019) (internal citations omitted). 2 "Propensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish that defendant has a natural tendency to commit the crime charged." State v. Pierce, 678 S.W.3d 115, 121 (Mo. App. S.D. 2023) (quoting State v. Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013)) (emphasis added). Examples of properly admitted propensity evidence in cases involving minor victims include admitting defendant's prior conviction for first-degree statutory sodomy, testimony by uncharged victims of sexual abuse concerning defendant giving them drugs prior to abuse as was done with the charged victim, or a family court finding that a defendant sexually abused his son and stepdaughter from a previous relationship. State v. Williams, 548 S.W.3d 275, 288–92 (Mo. banc 2018); State v. Shepard, 662 S.W.3d 761, 766–67 (Mo. App. E.D. 2023); State v. Robertson, 674 S.W.3d 153, 165 (Mo. App. E.D. 2023). Ultimately, the jury upon hearing the propensity evidence must conclude the defendant actually

2 In 2014, Missourians amended the state constitution to allow propensity evidence in sex crimes cases involving victims under the age of eighteen. State v. Williams, 548 S.W.3d 275, 280 (Mo. banc 2018); M O. CONST. art. 1, § 18(c). When using propensity evidence in child sex cases the State typically files a motion noting its intent to do so. See Williams, 548 S.W.3d at 279; see also State v. Billings, 694 S.W.3d 556, 565 (Mo. App. W.D. 2024); see also State v. Watson, 697 S.W.3d 44, 48 (Mo. App. W.D. 2024); see also State v. Robertson, 674 S.W.3d 153, 164 (Mo. App. E.D. 2023); see also State v. Brown, 596 S.W.3d 193, 205 (Mo. App. W.D. 2020). Under this record, the State clearly indicated it had no intention of eliciting propensity evidence, and thus no motion was filed.

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committed the prior uncharged criminal act to have probative value. Williams, 548 S.W.3d at 288–89 (citing Huddleston v. United States, 485 U.S. 681, 689 (1988)). On the other hand, a trial court may admit evidence of uncharged criminal acts for purposes other than proving a defendant's tendency to commit the charged crime. "Evidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged may be admitted to present 'a complete and coherent picture of the events that transpired.'" State v. Naasz, 142 S.W.3d 869, 878 (Mo. App. S.D. 2004) (internal citation omitted); State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994). "For child sexual crimes, the complete and coherent picture of the circumstances may include explaining delayed disclosures, recantation, or tentative disclosure, explaining why the child may give alternative sources for injuries or pain, and explaining the relationship between the victim and defendant." State v. Dodd, 711 S.W.3d 619, 629–30 (Mo. App. E.D. 2025) (citing State v. Miller, 372 S.W.3d 455, 474 (Mo. banc 2012)) (emphasis added). A trial court may also admit evidence that shows the effect the statements had on the listener, regardless of the veracity of the statement. State v. Reuter, 711 S.W.3d 584, 588, 592–93 (Mo. App. E.D. 2025) (internal citations omitted) (admitting statements from defendant's ex-wife that defendant left a gun in his daughter's backpack, vowed to destroy those who opposed him, and planned on shooting bad judges, for the effect said statements had on a family court judge, whom defendant harassed, causing the judge to fear defendant). Here, Victim's testimony does not constitute propensity to commit the charged crime, instead, the State sought to introduce Duncan's statement as evidence of the

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circumstances surrounding the charged offenses of rape and molestation of Victim. Victim's testimony about Duncan's statements regarding his wife help explain Victim's relationship with Duncan and show the effect on Victim—a grown man trying to groom a twelve or thirteen-year-old girl in order to abuse her. See Reuter, 711 S.W.3d at 592– 93; see also Dodd, 711 S.W.3d at 629–30. At no point did the State argue that because Duncan had sex with his wife when she was a child he therefore had a natural tendency that led him to rape and molest Victim and the State did not ask the jury to make such an inference. See Pierce, 678 S.W.3d at

1. Instead, the State focused on how Duncan psychologically and emotionally

manipulated Victim to in order to normalize his aberrant behavior and ensure Victim's silence. Thus, Victim's testimony is not propensity evidence, but rather evidence of grooming. We now proceed to analyze the relevance of the grooming evidence. B. Victim's testimony was admissible because it was both logically and legally relevant

"For evidence to be admissible, it must be logically and legally relevant." Robertson, 674 S.W.3d at 160 (citing Prince, 534 S.W.3d at 817). Duncan argues Victim's testimony about his wife was irrelevant to any material fact because the record contains cumulative evidence that Duncan groomed Victim. We disagree.

1. Victim's testimony is logically relevant

Logical relevance poses a low-level test that requires the evidence "to make the existence of a material fact more or less probable." Dodd, 711 S.W.3d at 626 (internal quotation omitted). Victim's testimony meets the low-level threshold of logical

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relevance because Duncan's statement to Victim about having sex with his first wife when she was a child makes it more probable Duncan groomed Victim. Duncan grooming Victim is a material fact demonstrating Duncan created an environment where he could ensure Victim's continued submission to sexual abuse and decrease the risk of disclosure. See Naasz, 142 S.W.3d at 878 (stating defendant told his daughter his sexual abuse of her was a "special love" and that other people, including daughter's mother, would not understand their special relationship in an attempt to normalize his continued abuse of his daughter, and to ensure secrecy).

1. Victim's testimony is not unfairly prejudicial

"Legal relevance weighs the probative value of the evidence against its costs— unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Dodd, 711 S.W.3d at 626 (internal quotation omitted) (emphases added). "A trial court should therefore exclude logically relevant evidence if its costs outweigh its benefits." Id. (internal quotation omitted). "We afford great deference to the trial court's assessment of whether the evidence is legally relevant." State v. Lumzy, 713 S.W.3d 729, 743–44 (Mo. App. E.D. 2025) (internal quotation and alternations omitted). To determine whether evidence of an uncharged prior bad act is prejudicial, we may consider how much time the State spent on this evidence, whether an objection was made and sustained, and if the prior bad act overshadows the charged crime. See State v. Greer, 679 S.W.3d 531, 537 (Mo. App. E.D. 2023) (internal quotation omitted); see also Williams, 548 S.W.3d at 290 (internal citation omitted).

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The manner in which the State uses the evidence may pose unfair prejudice if "the State spends an undue amount of time emphasizing the prior conduct or flagrantly invites the jury to convict the defendant because he is a bad person rather than because he committed the charged crime[.]" State v. Billings, 694 S.W.3d 556, 569 (Mo. App. W.D. 2024) (internal citations and quotation marks omitted). "However, if the State spends relatively little time on the issue of a defendant's prior crimes and merely uses the evidence for its proper purpose ... the danger decreases and may—on balance—not be unfair." Id. (internal quotation and quotation marks omitted). Here, the Victim's testimony about Duncan's sexual history with his wife does not unfairly prejudice Duncan because the State spent relatively little time on this issue. The State briefly foreshadowed this testimony in its opening statement. During its case in chief, the State spent a total of two pages questioning Victim about this issue out of a total of 165 pages of testimony. As we explained above, in its closing and rebuttal argument the State used the evidence for the proper purpose of providing a complete and coherent picture of Victim's relationship with Duncan and the effect Duncan's statement would have had on Victim, minimizing any danger of unfair prejudice. See id. Despite the trial court not sustaining Duncan's objection to the Victim's testimony, the State still did not unduly highlight this evidence. See Greer, 679 S.W.3d at 537 (internal quotation omitted) (finding prejudice did not outweigh the probative value of a corrections officer reading off a list of thirteen prior sexual misconduct violations for a defendant charged with harassment and sexual misconduct). Thus, these two factors do not support excluding Victim's testimony.

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"Evidence the defendant previously sexually abused a young child is highly prejudicial in the abstract, but there is far less danger of unfair prejudice from such evidence in a prosecution for sexually molesting a young child than there would be in a prosecution for a less heinous crime." Williams, 548 S.W.3d at 290 (internal citation omitted). Here, Duncan's charges of statutory rape and molestation are not overshadowed by Victim's testimony of Duncan having sex with his wife when she twelve or thirteen because both the charged crime and the prior bad act involve criminal sexual acts against a child. See id. Moreover, the graphic nature of the testimony the jury heard regarding Duncan's abuse of Victim was far more provocative than the brief mention of when he began his sexual relationship with a woman he eventually married. Therefore, the trial court did not err in admitting Victim's testimony over Duncan's unfair prejudice objection.

1. Victim's testimony is not cumulative

Duncan argues that Victim's testimony about his sexual relationship with his wife is merely cumulative of other evidence of grooming and therefore not relevant. To support his argument, Duncan points to other evidence he alleges demonstrates grooming including, Duncan removing Victim and Brother out the foster care system, providing necessities like food, housing, clothing and a phone, allowing Victim to attend mixed martial arts classes, and exchanging mutual expressions of love. We find such evidence to be neither cumulative, nor evidence of grooming. Cumulative evidence "addresses a matter fully developed by other testimony." Eye v. State, 551 S.W.3d 671, 675 (Mo. App. E.D. 2018) (internal quotation omitted).

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"However, evidence of a different kind or different circumstances tending to establish or disprove the same fact is not cumulative, nor is circumstantial evidence tending to prove a fact cumulative of evidence which tends to directly establish the same fact." Id. (internal quotation marks, quotation, and alteration omitted). Victim's testimony about Duncan's wife is not cumulative as it addresses different circumstances than the evidence Duncan claims sufficiently demonstrates his grooming of Victim. See id. at 676 (finding a witness' testimony that defendant was not present at his resident before a search cumulative because two other witnesses already provided the same evidence). Duncan taking Victim out of foster care, providing necessities, allowing her to attend mix martial art classes, and exchanging mutual affection for each other may indeed demonstrate Duncan's efforts to build trust with Victim, but such acts are also simply innocuous behavior expected of a family member responsible for raising children. Conversely, Victim's testimony about Duncan telling her about having sex with his wife when wife twelve or thirteen, while touching Victim's vagina, provides a different and more insidious circumstance to support the conclusion Duncan groomed Victim, in order to make her less resistant to even more egregious types of abuse. See id. at 673–74, 676 (finding a witness's testimony about owning the methamphetamine the defendant was convicted of possessing not cumulative). Here, Victim's testimony is not cumulative; therefore, the trial court did not err in admitting this evidence. Assuming arguendo the trial court erred in admitting this testimony, which it did not, the record supplies overwhelming evidence Duncan committed the crimes he was charged with. In light of this evidence, no reasonable probability exists a jury would have acquitted

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Duncan but for the claimed improperly admitted testimony from Victim. Thomas, 628 S.W.3d at 694 (internal quotation omitted). We deny Point One. Conclusion The judgment of the trial court is affirmed.

Rebeca Navarro-McKelvey, P.J.

Gary M. Gaertner, Jr., J. and James M. Dowd, J., concur.