State of Missouri, Respondent v. Donald J. Ellison, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State of Missouri, Respondent v. Donald J. Ellison, Appellant. Case Number: SC88468 Handdown Date: 12/04/2007 Appeal From: Circuit Court of Livingston County, Hon. Warren L. McElwain Counsel for Appellant: Craig A. Johnston Counsel for Respondent: Karen L. Kramer and Shaun J. Mackelprang Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: This case involves the appeal of a man convicted after a jury trial of first-degree child molestation. During his trial, the state admitted – over the man's objections – evidence of his prior conviction for first-degree sexual abuse, and the court allowed the jury to consider this evidence in determining whether the man had a propensity to commit the crime for which he was on trial. In a unanimous decision written by Judge Michael A. Wolff, the Supreme Court reverses the conviction and sentence and remands the case for a new trial. Section 566.025, RSMo 2000, which permitted admission of the propensity evidence, violates the state constitution's guarantee that a defendant will be tried only for the crime with which he is charged. In so holding, the Court acts consistently with a long line of cases holding that the Missouri constitution prohibits admission of previous criminal acts – both uncharged crimes and convictions – as evidence of a defendant's propensity. Where logically and legally relevant, prior criminal acts may be introduced into evidence for certain purposes, but never to show propensity to commit the present crime. Facts: Donald Ellison was charged with first-degree child molestation under section 566.067, RSMo 2000, for

allegedly having sexual intercourse with a child younger than 10 years old during the summer of 2003. The evidence presented during the August 2005 jury trial showed that the child's mother was a longtime friend and a coworker of Ellison's wife. When the women were both at work, Ellison would baby-sit at the Ellisons' home. One day while he was watching the child, he engaged in sexual intercourse with her despite her repeated requests that he stop. He had intercourse with her a number of times and engaged in other inappropriate sexual acts with her that summer. She did not tell anyone until an August 2004 slumber party, when she broke down and revealed that Ellison had molested her. She testified she did not tell anyone before because Ellison threatened to kill her if she told. Before it presented this evidence, the state entered into evidence, pursuant to section 566.025, RSMo 2000, a certified copy of Ellison's previous conviction for first-degree sexual abuse for subjecting a 12-year-old girl to sexual contact without her consent by the use of forcible compulsion and injuring her in the process. Ellison objected to the admission of this evidence both before the trial began and when the state offered it into evidence. The trial court overruled his objections, finding the evidence of the previous conviction was more probative than prejudicial. The jury, which was instructed it could consider Ellison's propensity to commit the crime with which he was charged, found him guilty. The court sentenced him as a prior offender to 20 years in prison. Ellison appeals. REVERSED AND REMANDED. Court en banc holds: Because section 566.025 permits evidence of a defendant's prior criminal acts to be admitted purely to demonstrate the defendant's criminal propensity, it violates one of the constitutional protections vital to the integrity of our criminal justice system. Article I, sections 17 and 18(a) of the state constitution guarantee that a defendant has the right to be tried only on the offense charged. Based on these sections, this Court for more than 100 years has maintained a general prohibition against the admission of evidence of prior crimes out of concern that evidence of other crimes, when not related properly to the cause of the trial, violates the defendant's right to be tried for the offense with which he is charged. Our system of law shields defendants from the perception that a person who has acted criminally once will do so again. These principles are confronted directly by section 566.025, a successor statute that was enacted after State v. Burns, 978 S.W.2d 759 (Mo. banc 1998), invalidated the 1994 version. The statute's final clause, addressing the weighing of probative value and prejudicial effect, was added to the statute in 2000 after Burns was decided. Rules of construction requiring that this Court adopt any reasonable reading of the statute that will allow its validity and resolve any doubts in

favor of constitutional validity do not save the statute in this case. Without exception, evidence of prior criminal acts never is admissible to demonstrate the defendant's propensity to commit the crime with which he presently is charged. Evidence of prior criminal acts may be admissible, however, where it is logically and legally relevant to establish issues including but not limited to motive, intent, absence of mistake or accident, 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, or the identity of the person charged with the commission of the crime on trial. These purposes are not exceptions to the ban on propensity evidence. Rather, they are exceptions to the broader general rule prohibiting admission of evidence of prior criminal acts for any purpose. Accordingly, a finding of logical and legal relevance, however, never will provide a basis for admitting evidence of prior criminal acts to demonstrate a defendant's propensity. Both convictions and uncharged acts are inadmissible to show propensity. Citation: Opinion Author: Michael A. Wolff, Judge Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Issue Does Missouri's Constitution permit a court to admit evidence of a criminal defendant's prior conviction solely for the purpose of showing that the defendant has a propensity to commit the crime with which he is charged? Facts and Procedural History Donald Ellison was charged with child molestation in the first degree under section 566.067.(FN1) Ellison allegedly touched his genitals to the genitals of a child who was either eight or nine years of age at the time of the offense. The jury found Ellison guilty. The facts, stated most favorably to the verdict, are as follows:

The child's mother was a longtime friend of Tena Ellison, who was married to Donald Ellison. The mother and Tena worked at Dairy Queen. When the mother was working, Tena would often look after the mother's two children. On the days when both worked, Ellison would watch the children at the Ellisons' home. One day during the summer of 2003, Ellison was watching the child while Tena and the mother were at work. Ellison asked the child to go into the bedroom, where he engaged in sexual intercourse with the child, despite her repeated requests that he stop. The child testified that she did not tell anyone for a year following the first incident because Ellison threatened to kill her if she told. In addition to the incident that was the basis of the charged offense, Ellison often made inappropriate sexual advances, sometimes by showing the child pornography and masturbating in front of her when the child stayed at Ellison's home. Ellison ejaculated in the child's presence and asked her to drink his ejaculate. Ellison had vaginal intercourse with the child a number of times in various rooms in Ellison's house. On August 19, 2004, the child was at a slumber party when she broke down and revealed that Ellison had molested her. After the child was taken home, she told her mother that Ellison had raped her. The mother took her daughter to the local sheriff that evening. In interviews with local deputies, the child described various instances of sexual abuse that had taken place after her sixth or seventh birthday and continued until her ninth birthday. Ellison was charged with child molestation in the first degree. At trial, the state began its case by entering in evidence, pursuant to section 566.025, a certified copy of Ellison's conviction for the class C felony of sexual abuse in the first degree for subjecting a 13-year-old girl "to sexual contact without her consent by the use of forcible compulsion and in the course of such offense [Ellison] inflicted serious physical injury" to the girl. Ellison filed a pretrial motion in limine asking the trial court to enter an order in limine prohibiting the state or any witness from referring to or offering evidence of that prior conviction. Ellison also objected at trial to the admission of the prior conviction as more prejudicial than probative. The trial court overruled Ellison's objection and admitted the prior conviction, finding that "the evidence of a prior conviction is more probative than prejudicial." Ellison did not testify at trial. The jury was given Instruction No. 7, patterned after MAI-CR3d 310.12, which stated that, "[i]f you find and believe from the evidence that the defendant pled guilty to sexual abuse, an offense other than the one for which he is now on trial, you may consider that evidence on the issue of the propensity of the defendant to commit the crime with which he is charged." Ellison objected to the instruction on the ground that it violated his constitutional right to a fair trial. The objection was overruled, the instruction was read, and the jury found Ellison guilty of child molestation in the first

degree. The trial court sentenced Ellison as a prior offender to 20 years. Because Ellison challenges the validity of section 566.025, this Court has jurisdiction. Mo. Const. art. V, sec. 3. Constitutional Principles The evidentiary issue – and the constitutionality of section 566.025 – is governed by the guarantee of art. I, sections 17 and 18(a) 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). Section 17 of the Missouri Constitution provides that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information." Section 18(a) states "[t]hat in criminal prosecutions the accused shall have the right...to demand the nature and cause of the accusation...." Based on art. I, section 17 and 18(a), this Court has long maintained a general prohibition against the admission of evidence of prior crimes out of concern that "[e]vidence of uncharged crimes, when not properly related to the cause of trial, violates a defendant's right to be tried for the offense for which he is indicted." Id. (citing State v. Holbert, 416 S.W.2d 129, 132 (Mo. 1967)).(FN2) This evidentiary bar stems from the need to avoid "encourag[ing] the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged." State v. Bernard, 849 S.W.2d 10, 16 (Mo. banc 1993). In other words, the law shields defendants from the perception that a person who has acted criminally once will do so again. These principles are directly confronted by section 566.025, a successor statute that was enacted after Burns invalidated the 1994 version. The current version provides: In prosecutions pursuant to this chapter [566] or chapter 568, RSMo, of a sexual nature 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 of a sexual nature 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 or she is charged unless the trial court finds that the probative value of such evidence is outweighed by the prejudicial effect. The statute's final clause, addressing the weighing of probative value and prejudicial effect, was added to the statute in

2000 after the Burns decision. Section 566.025 RSMo 1994, stated simply that evidence of charged and uncharged crimes "shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he is charged." In Burns, this Court held that the mandate of compulsory admissibility ("shall be admissible") in the unamended statute violated article I, sections 17 and 18(a) of the Missouri Constitution. Burns, 978 S.W.2d at 762. The rules of construction demand that this Court "adopt any reasonable reading of the statute that will allow its validity and...resolve any doubts in favor of constitutionality." Burns, 978 S.W.2d at 760. As in Burns, however, "the rules of construction do not save the statute in this case." Id. Evidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged. Bernard, 849 S.W.2d at 13 (citing State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992)). There are no exceptions to this rule. The statute's amendment may have been occasioned by a misreading of the portion of Burns that says: "Evidence of prior misconduct of the defendant, although not admissible to show propensity, is admissible if the evidence is 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 the evidence is legally relevant, in that its probative value outweighs its prejudicial effect." 978 S.W.2d at 761 (emphasis added) (internal citations omitted). What that passage in Burns means is no more than the traditional understanding: Evidence of prior criminal acts may be admissible for purposes other than demonstrating the defendant's propensity if the evidence is logically and legally relevant. Alternate purposes for admitting evidence of prior criminal acts include establishing "(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 that proof of one tends to establish the other; [or] (5) the identity of the person charged with the commission of the crime on trial."(FN3) State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Evidence of prior criminal acts may be admissible for these alternate purposes only if that evidence 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 the evidence is legally relevant, in that its probative value outweighs its prejudicial effect." Burns, 978 S.W.2d at 761. The criteria of logical and legal relevance are not intended as a loophole for evading the general ban on propensity evidence. A finding of legal and logical relevance will never provide a basis for the admission of prior criminal

acts evidence for the purpose of demonstrating a defendant's propensity. The misconception that logical and legal relevance are required for the admission of propensity evidence is reflected in the 2000 statutory amendment to section 566.025. The clause requiring probative value and prejudicial effect has no bearing on the constitutionality of propensity evidence. The alternative evidentiary purposes described above (e.g. motive, identity, common scheme or plan) are referred to in case law as "exceptions." See, e.g., Barriner, 34 S.W.3d at 144 ("This list of exceptions [motive, intent, the absence of mistake or accident, a common scheme or plan, identity] is not exhaustive."); Bernard, 849 S.W.2d at 13 (referring to the "five enumerated exceptions"). These purposes are not exceptions to the ban on propensity evidence. Rather, they are exceptions to the broader general rule prohibiting the admission of evidence of prior criminal acts for any purpose. See Sladek, 835 S.W.3d at 311, where this Court said: "Evidence 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....exceptions to [this] general rule are as well established as the rule itself." In holding this statute unconstitutional, this Court acts consistently with a long line of cases holding that the Missouri constitution prohibits the admission of previous criminal acts as evidence of a defendant's propensity. "Evidence of prior uncharged misconduct is inadmissible for the sole purpose of showing the propensity of the defendant to commit such acts." State v. Gilyard, 979 S.W.2d 138, 140 (Mo. banc 1998); see also, State v. Reese, 274 S.W.2d 304, 307 (Mo. 1954). Our cases likewise hold that convictions, as well as uncharged acts, are inadmissible to show propensity. Conclusion Evidence of a defendant's prior criminal acts, 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 judgment is reversed, and the cause is remanded for a new trial. All concur. Footnotes: FN1.All statutory references to RSMo (2000) unless otherwise indicated.

FN2.See also State v. Spray, 74 S.W. 846, 848, 851 (Mo. 1903) ("'This rule [prohibiting the admission of evidence of crimes other than the one of which the defendant stands accused], so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta.'"). FN3.This list of alternative purposes "is not exhaustive." Barriner, 34 S.W.3d at 145. See also State v. Sladek, 835 S.W.2d 308, 312 (Mo. banc 1992) ("The exceptions stated in [State v.] Reese, [274 S.W.2d 304, 307 (Mo. banc 1954)] though not necessarily all inclusive, simply state some material facts that evidence of uncharged crimes may prove. Thus, evidence of the commission of an uncharged crime may prove motive or intent or another material fact, but in any event the evidence must have some legitimate tendency to directly establish the defendant's guilt."). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.