STATE OF MISSOURI, Respondent v. JACKSON W. CHAMBERS, Appellant

STATE OF MISSOURI, Respondent, v. JACKSON W. CHAMBERS, Appellant.

No. SD38577

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Kaiti Greenwade, Judge AFFIRMED A jury found Jackson Chambers guilty of one count of first-degree child molestation. On appeal, Chambers argues, first, that the trial court abused its discretion in admitting the testimony of a propensity witness ("Propensity Witness") who alleged Chambers, her uncle, sexually assaulted her. He contends that the probative value of the niece's testimony was substantially outweighed by the danger of its unfair prejudice. Second, Chambers argues that the trial court abused its discretion in allowing the jury to view a video recording of a police interview of Chambers which included discussion of

In Division

2 the unadjudicated bad acts he allegedly committed against Propensity Witness, because its probative value was substantially outweighed by the danger of unfair prejudice. We disagree and affirm the judgment. Factual Background 1

When the victim of the offense Chambers was convicted of committing in this case ("Victim") was twelve years old, she was interviewed at the Child Advocacy Center as a witness in an unrelated matter. The forensic interviewer asked Victim to identify, on an outline drawing of a female body, the parts of a woman's body that were inappropriate for touching. Victim circled, inter alia, the genital area. In a follow-up question, the interviewer asked whether anyone had touched Victim in that area. Victim then disclosed that Chambers had touched her vagina with his hand and fingers when she was six years old. At trial, Victim testified that she lived across the street from Chambers in Greene County, Missouri, between 2011 and 2013. Victim and her two brothers frequently played with Chambers' children, as they were close in age. On one occasion, Victim and

1 We view the facts through the perspective the law requires. We accept as true all evidence and reasonable inferences favorable to the verdict, disregarding contrary inferences unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. We do not weigh the evidence or decide the credibility of witnesses, but defer to the trial court. The trier of fact may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances, and other testimony in the case. State v. Robinson, 711 S.W.3d 921, 926 (Mo.App. E.D. 2025) (citation modified).

3 her two brothers spent the night at the Chambers' house because of a domestic dispute between Victim's mother and step-father. Chambers and his wife offered to let the children stay in their home for the night. Victim played with Chambers' daughter and slept in the bunk beds in the daughter's bedroom. Victim recalled: I know I was upset because I wasn't around my mother, and I went and slept in his daughter's room. I was on the bottom bunk. And then next thing I know I'm crying, and then I'm being rocked in his arms as he touched my vagina. Victim specified that Chambers touched her with his hand and fingers under her clothes while he rocked her on the floor. An edited video of Victim's forensic interview was played for the jury. Procedural History Propensity Witness The trial court held a pretrial hearing pursuant to article I, § 18(c) of the Missouri Constitution to consider whether the testimony of Propensity Witness should be heard at trial. At the hearing, Propensity Witness testified as follows. When she was twelve years old, she lived in Colorado. Her family traveled to her grandmother's house in Lebanon, Laclede County, Missouri, "to visit the family and to see my uncle [Chambers] who just got out of prison." Propensity Witness and Chambers had been pen pals "while he was in prison for years and years." One afternoon, she was napping inside her grandmother's house after playing outside. Propensity Witness awoke to Chambers penetrating her vagina with his fingers. She pretended to be asleep and rolled over. Chambers then rubbed her back and asked her if she was having a nightmare or a bad dream.

4 Propensity Witness further testified that when she was fourteen years old, her family moved from Colorado to Lebanon, Missouri. The family stayed at her grandmother's house for a time while their home was being renovated. Chambers also was living, or at least staying, at the grandmother's house then. He slept on the couch in the living room, and Propensity Witness and her siblings slept on pallets on the floor of the living room. Several nights during that stay, Propensity Witness awoke to Chambers penetrating her vagina with his fingers under her clothes. One night, she hid in her parents' bedroom to avoid him, but the next night she saw Chambers "over my sister; so I kind of figured that since I wasn't there, he done [sic] it to my sister[,] so then I didn't hide anymore and I just laid the closest to him so that he would do it to me and not to them." Chambers touched Propensity Witness' vagina under her clothes approximately six to twelve times while the family was staying with her grandmother. On cross-examination, Propensity Witness clarified that the first instance of abuse occurred in approximately 2001, twenty-two years before she testified at the hearing. She explained that she did not disclose that occurrence to anyone out of fear of upsetting her family. After the series of incidents that occurred when she was fourteen, she avoided Chambers as much as she could. She acknowledged that she again did not tell anyone what happened: "I wanted it to go away. I wanted to act like it didn't happen." The trial court admitted the propensity evidence pursuant to article I, §18(c) of the Missouri Constitution, stating, "I find that the probative value of the evidence is not going to be substantially outweighed by unfair prejudice. So[,] for the propensity purposes I would allow that testimony."

5 Chambers' Statements At a second pretrial hearing, the court heard Chambers' motion to suppress statements contained in the video recording of police interviewing him about the unadjudicated bad acts he allegedly committed against Propensity Witness. At the hearing, the detective testified about the video-recorded interview. The trial court granted in part and denied in part the motion to suppress statements. Specifically, the trial court suppressed statements about the "Laclede County incident" involving Propensity Witness and denied the remainder of the motion to suppress. Trial Propensity Witness testified again at trial. Her trial testimony was consistent with her testimony at the first pretrial hearing. She explained that Chambers sexually molested her at a family gathering when she was twelve years old. She went inside her grandmother's house to lie down in the living room, fell asleep on the floor, and awoke to Chambers touching and penetrating her vagina with his fingers under her clothes. She attempted to dislodge his hand by rolling over. She further testified: And then he said, "Oh, are you okay? Are you all right." And I just didn't say anything. I was just laying there because I didn't know what to do. And he said, "Oh, you were having a bad dream" and was rubbing my back and asked me if I was okay, and that – that he came in and acted like I was having a bad dream.

Propensity Witness also recounted Chambers' similar actions when she was fourteen years old. On cross-examination, Chambers' attorney asked Propensity Witness whether or not there had been allegations that Chambers had "done anything" to her siblings. Propensity Witness replied:

6 Well, those allegations will never come to light. I'm not here by choice. I'm here for this child. I'm not here for choice. I have handled what happened to me. I'm not here for me. And for other kids that have alleged that it happened to them, they don't wish to speak about it. They are grown people who have let it die too. The detective who interviewed Chambers in 2019 also testified at trial. An edited version of the interview, consistent with the trial court's order on the motion to suppress, was played for the jury. In the video, Chambers stated, inter alia, that he did not touch Victim, and speculated that she might have had a bad dream. Legal Standards Trial courts have broad discretion in admitting or excluding evidence during a criminal trial. State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019). We will overturn an evidentiary ruling "only when there is a clear abuse of this discretion[,]" which occurs when the ruling "is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id. (quoting State v. Hartman, 488 S.W.3d 53, 57 (Mo. banc 2016), as modified (Mar. 25, 2016), and State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016)). A finding of error requires reversal only upon a showing of prejudice, or in other words, if such error deprives the accused of a fair trial. An accused is deprived of a fair trial and prejudice is established if the Court concludes the erroneously admitted evidence improperly influenced the jury to a point at which there is a reasonable probability that, but for the improperly admitted evidence, the jury would have reached a different result. State v. Hollowell, 643 S.W.3d 329, 336-37 (Mo. banc 2022). (citation modified).

7 Propensity Evidence "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)). In 2014, Missouri voters amended article I, § 18(c) of the Missouri Constitution to provide as follows: [I]n prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. This provision affords a trial court "substantial discretion in admitting or excluding [propensity] evidence even if there is a danger of some prejudice." State v. Shepard, 662 S.W.3d 761, 769 (Mo.App. E.D. 2023) (quoting State v. Prince, 534 S.W.3d 813, 821 (Mo. banc 2017)). If propensity evidence is to be excluded, its "probative value ... must not simply be outweighed by, but substantially outweighed by, [its] prejudicial effect...." Id. Our analysis is "intensely case-specific." Id. We consider factors outlined by the Supreme Court of Missouri in State v. Williams, 548 S.W.3d 275 (Mo. banc 2018). Shepard, 662 S.W.3d at 769. To have probative value, the evidence "must tend to show the defendant actually had a propensity to commit the charged crime at the time it is alleged to have occurred." Williams, 548 S.W.3d at 289. The trial court should consider the "similarity between the prior criminal act and the charged crime and ... the amount of time between the two." Id.

8 A circuit court should also ascertain whether the state needs the propensity evidence to "prove its case." Id. In evaluating the prejudicial effect of the evidence, it is relevant to weigh "whether the jury knows or can fairly infer the defendant was punished for his past criminal acts[,]" whether the evidence of past criminal acts overshadows the evidence of the crime charged, and the manner in which the state uses the evidence at trial. Id. at

In evaluating unfair prejudice, courts consider the jury's awareness of whether a defendant was charged for the prior conduct, acknowledging the risk that if the jury believed the acts went unpunished then they could punish the defendant for past acts as well as those for which he or she is on trial. Pierce, 678 S.W.3d at 122. Courts evaluate the manner in which the evidence is presented, finding less risk of prejudice when past convictions are soberly read into the record and heightened risk of prejudice when emotional, personal, live testimony is introduced. Courts also consider whether the prior acts overwhelm the evidence of the charged crime or whether the prosecution spent an undue amount of time emphasizing the prior conduct.

Id. (citations omitted). Chambers relies heavily upon the concurring opinion in State v. Minor, 648 S.W.3d 721 (Mo. banc 2022), which discussed the potential risks of admitting unadjudicated propensity evidence in child sexual abuse cases. The concurrence contrasted "the stoic and emotionless presentation of an exhibit evincing the existence of a prior conviction" with "a living, breathing person recounting unfathomable details of traumatic events and abuse" to prove unadjudicated conduct. Id. at 739 (Powell, J.,

9 the defendant engaged in the unadjudicated criminal act." Id. It focused on the risk that establishing the defendant actually committed the prior criminal act could result in "a trial within the trial[,]" creating a "mountain" of extrinsic evidence required to bolster the testimony of a propensity witness, creating "confusion and unfair prejudice" and a veritable "Pandora's box" of collateral evidence. Id. at 740-41. Discussion Point I In our case-specific analysis we find significant the following facts: (1) the offenses against both victims occurred while the victim was sleeping or pretending to sleep; (2) both victims woke up to find Chambers touching their vaginas with his hand and fingers under their clothes; (3) when the Propensity Witness woke up to Chambers' touching and she rolled over to pull away, Chambers rubbed her back and told her she had a bad dream; (4) in his police interview, Chambers denied any touching of Victim and suggested she had a bad dream; (5) both Victim and Propensity Witness had positive relationships with Chambers, that is, they knew him; (6) Chambers was Victim's neighbor, and she frequently played with his children both inside and outside of the Chambers home; and (7) Chambers is the uncle of Propensity Witness, and they had a "pen pal" relationship prior to the acts alleged. Probative Value Propensity Witness' testimony was highly probative, as it revealed that Chambers committed acts against Propensity Witness that were strikingly similar to the offenses he was charged with committing against Victim. Both awakened during sleep to find

10 Chambers touching each of their vaginas with his hand and fingers under their clothes. Chambers told Propensity Witness she had a bad dream. Chambers suggested to the detective that Victim had a bad dream. Chambers abused both young victims while they slept, and all but one of the acts occurred when others were sleeping in the home. Both young victims knew Chambers and had what appeared to be appropriate relationships with him. For Victim, Chambers was a trusted and helpful neighbor. For Propensity Witness, Chambers was her uncle and childhood pen pal. The state needed Propensity Witness' testimony to prove its case against Chambers. Without her testimony alleging similar acts carried out in nearly identical ways, the state had only Victim's statements and testimony, which were disclosed approximately six years after the acts occurred. Prejudicial Effect In considering the prejudicial effect of Propensity Witness' testimony, there is no indication in the record that Propensity Witness' testimony was overly emotional. Her direct testimony at trial comprised only eleven of over 400 pages of trial transcript. Despite Chambers' assertion that Propensity Witness displayed "visible frustration" that "would evoke undue sympathy" while testifying, the trial transcript does not reflect that her testimony was overly emotional or that she was visibly frustrated. Propensity Witness' testimony falls far short of opening a "Pandora's box" that could have caused extreme prejudice to Chambers, nor was her testimony anything similar to the "trial within the trial" contemplated by the Minor concurrence. See Minor, 648 S.W.3d at 739-

11 The risk that the jury would punish Chambers for his past acts is always a concern with propensity evidence. In her testimony, Propensity Witness made clear that she knew that Chambers could not be punished for his acts against her, but she was present at trial to help Victim. While this testimony could lead the jury to believe that Chambers was not punished for his past crimes, the jury could also have reasonably found the testimony supported its responsibility to limit its verdict to the crimes alleged against Victim. To ameliorate the prejudicial effect of Propensity Witness' testimony, in closing arguments both the state and the defense explained that Chambers was being tried for his offenses against Victim only; not for his acts against Propensity Witness. This point was further emphasized by Jury Instruction 7, which was given to the jury before deliberation and read as follows: The defendant is on trial only for the offenses charged. You may not find the defendant guilty only because you believe he may have been involved in or committed other offenses or bad acts in the past. If you find and believe from the evidence that the defendant previously was involved in or committed other offenses or bad acts, you may consider such evidence only for the purposes stated in the court's instructions. .... If you find and believe from the evidence that the defendant previously committed other criminal acts of child molestation of [Propensity Witness], you may consider that evidence for the purpose of corroborating the victim's testimony and or demonstrating the defendant's propensity to commit the offense for which he is charged. The record shows that Chambers' acts against Propensity Witness occurred approximately ten years before the offenses against Victim. Whatever effect this amount

12 of time between acts had on the jury, the potential prejudicial effect is belied by Chambers' almost identical conduct against both Victim and Propensity Witness. Missouri courts have found probative value in evidence of acts occurring up to forty years prior to the trial of charges against the current victim. See Pierce, 768 S.W.3d at 122 (collecting cases). Moreover, "[e]vidence of acts over time may weigh in favor of ongoing propensity as opposed to isolated incidents." Id. (citing Shepard, 662 S.W.3d at 770). Taken together, we are not persuaded that the probative value of Propensity Witness' testimony was substantially outweighed by the risk of prejudice to Chambers. See Article I, § 18(c), Missouri Constitution. Point I is denied. Point II In Chambers' second point on appeal, he argues that the trial court erred in admitting the propensity evidence contained in the video recording of his police interview. Chambers contends that the reference to Propensity Witness' allegations in the edited video of the interview was substantially more prejudicial than probative, thus inadmissible. In evaluating the isolated challenge to the admissibility of the video, we must consider only whether the probative value of propensity evidence contained in the video was substantially outweighed by its prejudicial effect. The portion of the interview that pertained to propensity evidence was as follows: DETECTIVE: OK. Have you had any other kids come forward about you in your life? CHAMBERS: Oh, yeah. Yeah.

13 DETECTIVE: Like when? CHAMBERS: When I told on my nephew for touching my little niece. I told on him, and his mom said that it couldn't have been her [sic]. And then, there, a few days later, "Oh, it has to be you." That's it. Both Chambers and the detective testified at trial that Chambers was previously accused of sexually abusing his niece, Propensity Witness. Thus, the propensity evidence at issue in Chambers' Point II is cumulative to his own testimony and to the detective's testimony at trial. "A complaining party is not entitled to assert prejudice if the challenged evidence is cumulative to other related admitted evidence." State v. Brandolese, 601 S.W.3d 519, 536 (Mo. banc 2020) (quoting Saint Louis Univ. v. Geary, 321 S.W.3d 282, 292 (Mo. banc 2009). Point II is denied. Judgment affirmed. JACK A. L. GOODMAN, J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS JENNIFER R. GROWCOCK, C.J. – CONCURS