Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis
1322-CR05035-01 Honorable Jimmie M. Edwards
M. CLAYTON III, Presiding Judge.
Thigpen ("Defendant") appeals the judgment entered
upon a jury verdict convicting him of one count of forcible
rape of a child under twelve years old. We affirm.
Evidence Presented at Defendant's Jury Trial
in the light most favorable to the verdict, the evidence
presented at Defendant's jury trial revealed the
following facts. On March 2, 2013, Victim M.V.
("M.V."), a nine-year-old girl, attended her
uncle's wedding. At around 1:00 a.m. on March 3, 2013,
M.V., her mother ("Mother"), and her siblings left
the wedding and went to her aunt L.G.'s house in the City of St. Louis. There were
other people in the house at that time, including Defendant,
who was there to sell heroin. Defendant also used heroin
while he was there.
entering L.G.'s house, Mother, M.V., and her siblings
went into M.V.'s cousin's first-floor bedroom, which
had red carpet, to go to bed. M.V. was still wearing the
dress that she wore to the wedding when she got into bed.
Shortly thereafter, Mother got out of bed and left with her
other children to stay the night with the children's
father at a hotel. Mother left M.V. behind because M.V. did
not want to go to the hotel.
M.V. fell asleep, Defendant came into the room and dragged
M.V. from the bed into the living room by her feet. As M.V.
lay on the floor, Defendant removed her underwear, got on top
of her, and "started humping" her. Defendant's
penis touched M.V.'s vagina. Defendant then dragged M.V.
back to the first-floor bedroom. Defendant blindfolded M.V.,
tied her arms together with t-shirts, and left M.V. on the
floor of the bedroom.
around 5:00 a.m., M.V.'s aunt K.B. found M.V. tied up on
the floor in the first-floor bedroom. Aunt K.B. untied M.V.
and asked who had tied her up; M.V. responded it was the men
who were in the house. Aunt K.B. then took M.V. upstairs to
lie down, and attempted to call the police but no one would
give her a phone. Aunt K.B. eventually fell asleep. M.V. went
to the bathroom and realized she was bleeding from her
vagina. After aunt K.B. woke up, she helped M.V. change from
the dress she wore to the wedding and overnight into clean
clothes. Then, aunt K.B. took M.V. to her aunt E.G.'s
arriving at aunt E.G.'s house, aunt K.B. told her what
happened to M.V. Aunt E.G. suggested they call the police.
During this time, Mother arrived at aunt L.G.'s house and
realized M.V. was no longer there. Mother saw M.V.'s
dress on the floor, so she picked it up and went to aunt
E.G.'s house. After Mother got to aunt E.G.'s, she
talked to M.V. and asked her what happened. M.V. would not
tell Mother what happened while other people were in the
room, so the two went into the bathroom. Then, M.V. told
Mother someone put a sheet over her head, choked her, and
rubbed against her. Mother asked M.V. if a man had touched
her, and M.V. responded she did not know. M.V. told Mother
that she saw blood when she went to the bathroom. Aunt E.G.
then called the police.
Mother, aunt K.B., and aunt E.G. returned to aunt L.G.'s
house to meet the police. Officers arrived and spoke with
M.V. alone in a bedroom. M.V. told the police she fell asleep
at aunt L.G.'s house, and when she woke up a black male
whom she did not know was "choking her and humping
her" with his pants on. M.V. said the man tied her up
and covered her eyes. M.V. did not know what happened to her
underwear during the encounter. The police officers who spoke
with M.V. noted she had a "flat affect" that was
consistent with trauma.
was subsequently taken to the hospital for examination.
There, M.V. spoke with a doctor and a social worker, who both
recalled M.V.'s "flat affect" and that she did
not change her demeanor during the entire examination. M.V.
told the doctor and the social worker similar stories: she
woke up to a man choking her; he dragged her by her feet from
the bedroom and into the living room where he humped her; and
he took her back to the bedroom, covered her eyes and mouth,
and tied her up with t-shirts. M.V. would later describe the
incident in a similar manner during a forensic interview.
physical examination of M.V. revealed several injuries. M.V.
was bruised and swollen on her right eye, her right ear, the
right side of her neck, and her right clavicle; she also had
a laceration on her sternum. Blood and abrasions were found
on M.V.'s genitals. Further, M.V.'s hymen was
lacerated and bleeding. A red fiber or "sticky red
mass" was stuck in her anal area. A rape kit, including
vaginal and rectal swabs, and M.V.'s underwear from the
morning after the incident were collected for testing. Due to
the amount of blood around M.V.'s vaginal area, the
doctor flushed sterile water over the area then let the wash
fall off and into a cup, which was also collected for
was also collected from aunt L.G.'s house. M.V.'s
underwear was found on the floor between the living room and
dining room. There was blood and a hair braid on the living
room floor. Blood was also found on the floor in the dining
room. Police were unable to recover the t-shirts used to
blindfold and restrain M.V.
and DNA testing produced the following results. It was
confirmed there was blood on M.V.'s underwear recovered
from the scene, as well as on the floor in the living room
and dining room. Blood, seminal fluid, and sperm were found
on M.V.'s dress she wore during the incident, M.V.'s
underwear she wore during the examination the next day, and
on the vaginal and rectal swabs taken from M.V. during the
examination. Sperm was also present in the fluid used to wash
M.V.'s vagina during the examination. M.V.'s DNA was
found in her underwear from the scene, the underwear she wore
during the examination, blood stains from the scene, and
blood stains from her dress.
was also a male DNA profile obtained from various pieces of
evidence, which was entered into the Combined DNA Index
System (CODIS) and matched to Defendant. Pursuant to a search
warrant, the police collected a new DNA sample from Defendant
to confirm his DNA profile. Defendant's DNA was then
confirmed on M.V.'s underwear recovered from the scene,
the rectal swab, the vagina wash fluid, the underwear she
wore during the examination, and on the dress she wore during
direct examination, Defendant presented the following version
of the facts. Defendant was at aunt L.G.'s house that
night; he sold and used drugs with some of the other
occupants in the house. Defendant claimed that while he was
in the first-floor bedroom, aunt K.B. performed oral sex on
him in exchange for drugs. Then, according to Defendant, aunt K.B.
used M.V.'s dress from a laundry pile in the first-floor
bedroom to clean seminal fluid off Defendant and the rug, and
threw the dress in the closet when she was done. Within
thirty to forty-five minutes, Defendant left the house.
rebuttal, the detective who executed the search warrant for
Defendant's DNA testified to the following. The detective
stated Defendant began to cry when he read the search
warrant. After Defendant was read his Miranda rights,
Defendant said a woman had performed manual and oral sex on
him in the dining room of aunt L.G.'s house that night.
Defendant said the woman put the seminal fluid "in a
napkin." When Defendant was asked if he had sexual
intercourse with a nine-year old, Defendant started to cry
again and said he did have sex with "someone" on
the dining room floor.
Relevant Procedural Posture
on the events which occurred at aunt L.G.'s house on or
between March 2 and March 3, 2013, Defendant was charged with
one count of forcible rape of a child under twelve years old
and one count of kidnapping. Defendant's jury trial was
held from November 30 through December 3, 2015.
days prior to trial, the State provided the trial court and
Defendant's counsel ("Defense Counsel" or
"Counsel") with written notice of its intent to
introduce propensity evidence of Defendant's prior
criminal acts pursuant to Article I, section 18(c) of the
Missouri Constitution ("Article I, section 18(c)"
or "the amendment"), including "the offenses
of first degree sexual assault of a child and failure to
comply with the requirements of the Wisconsin Sex Offender
Registry." In response to
the State's notice of intent, Defendant filed a motion in
limine arguing the evidence put forth by the State was not
relevant to demonstrate propensity, pedophilia, or
credibility, and it was highly prejudicial.
close of the State's case-in-chief, the trial court
permitted the State to read a "propensity
statement" to the jury regarding Defendant's failure
to register offense. Then, on direct examination, Defense
Counsel asked Defendant about his prior convictions. Acting
upon an alleged misrepresentation of the offense which put
Defendant on the sex offender registry, the State inquired
further about the offense on cross-examination. The trial
court also allowed the State to ask Defendant about his three
other arrests for sexual assault of a child, but only
permitted a general inquiry as to what Defendant had been
arrested for, not specific information about each arrest. The
State elicited the date and name of the charge.
jury found Defendant guilty of forcible rape; Defendant was
acquitted of kidnapping. Defendant filed a motion for
judgment of acquittal notwithstanding the verdict, or
alternatively, motion for new trial asserting, inter
alia, (1) the trial court erred in overruling
Defendant's objection to propensity evidence and in
allowing the "propensity statement" to be read to
the jury; and (2) the trial court erred in partially
overruling Defendant's objection to the State's
cross-examination of Defendant regarding other alleged
juvenile arrests, and in denying Defendant's motion for
mistrial based on this line of questioning. The trial court
subsequently denied Defendant's post-trial motion. The
trial court entered a judgment in accordance with the
jury's verdict, and sentenced Defendant as a prior and
persistent offender to life imprisonment. Defendant appeals.
raises four points on appeal, which we will discuss in the
following order. In his fourth point on appeal, Defendant
maintains the trial court plainly erred in allowing the State
to introduce any propensity evidence because, (1) Article I,
section 18(c) could not apply to this case as the offense was
committed before the amendment's effective date, and it
may only be applied prospectively; and (2) there are no
applicable case law exceptions to the prohibition against
propensity evidence. In Defendant's first and second
points on appeal, he argues the trial court erred in
admitting the propensity statement under Article I, section
18(c). And in Defendant's third point on appeal, he
contends the trial court erred in allowing the State to
cross-examine Defendant about his prior juvenile arrests.
Standard of Review
trial court has broad discretion to admit or exclude evidence
at trial, and an appellate court reviews evidentiary rulings
for an abuse of discretion. State v. Hood, No.
SD34258, 2017 WL 2482640 at *2, 3-5 (Mo. App. S.D. June 8,
2017) (case mandated on June 26, 2017) (reviewing a challenge
to evidence as violating Article I, section 18(c) for an
abuse of discretion); State v. McBenge, 507 S.W.3d
94, 112 (Mo. App. E.D. 2016). An abuse of discretion occurs
when the trial court's decision "is clearly against
the logic of the circumstances and is so unreasonable as to
indicate a lack of careful consideration."
McBenge, 507 S.W.3d at 112 (quotations omitted). We
review evidentiary rulings for prejudice, not mere error;
thus, we will only reverse if the defendant proves he was
prejudiced by the evidentiary error, i.e., there was a
reasonable probability the trial court's ruling affected
the outcome of the trial. Id.; State v.
Burton, 320 S.W.3d 170, 176 (Mo. App. E.D. 2010).
Relevant History of Missouri Law Relating to Propensity
Evidence in Cases Involving Crimes of a Sexual
evidence has been defined as "evidence of uncharged
crimes, wrongs, or acts used to establish that a defendant
has a natural tendency to commit the crime charged."
State v. Joyner, 458 S.W.3d 875, 886 (Mo.
App. W.D. 2015) (quoting State v. Shockley, 410
S.W.3d 179, 193 (Mo. banc 2013)). This appeal involves issues
relating to the use of propensity evidence in prosecutions
for crimes of a sexual nature, specifically involving victims
of a young age. Due to the complexity of the issue and the
ever-changing law on this subject area, we begin our
discussion by reviewing the current state of Missouri law
regarding the use of such propensity evidence.
Missouri General Assembly attempted several times to enact
legislation on the issue of propensity evidence in
prosecutions for crimes of a sexual nature. See State v.
Prince, 2017 WL 2644431 at *10 (Mo. App. E.D. June 20,
2017) (J. R. Dowd, Jr. concurring). The most recent example
of such legislation is section 566.025, which became effective in 1995. Section
566.025 authorized the State, in prosecuting cases of a
sexual nature involving a victim under fourteen years old, to
present "evidence that the defendant committed other
charged or uncharged crimes of a sexual nature involving
victims under fourteen years of age . . . for the purpose of
showing the propensity of the defendant to commit the crime
or crimes with which he or she is being charged."
State v. Rucker, 512 S.W.3d 63, 66-67 (Mo. App. E.D.
2017) (quoting section 566.025). However, the Missouri
Supreme Court declared section 566.025 unconstitutional in
State v. Ellison, finding the statute ran afoul of
the Missouri Constitution's general prohibition against
evidence of prior misconduct to establish a defendant's
propensity. 239 S.W.3d 603, 607-08 (Mo. banc 2007)
(superseded by Mo. Const., art. I, sec. 18(c)); see also
Rucker, 512 S.W.3d at 67.
General Assembly subsequently approved a joint resolution,
which proposed to Missouri voters a constitutional amendment
allowing for the admission of propensity evidence in
particular criminal cases. See Prince, 2017 WL
2644431 at *10 (J. R. Dowd, Jr. concurring). Missouri voters
approved the constitutional amendment, and Article I, section
18(c) went into effect on December 4, 2014. See
Rucker, 512 S.W.3d at 67. With the enactment of Article
I, section 18(c), Missouri voters effectively overturned
Ellison. See id. The amendment reads:
Notwithstanding the provisions of sections 17 and 18(a) of
this article to the contrary, in 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.
Mo. Const., art. I, sec. 18(c). The amendment expanded on the
exception to the rule against propensity evidence.
Compare Mo. Const., art. I, sec. 18(c),
with section 566.025; see also
Rucker, 512 S.W.3d at 67 n.5. Under Article I,
section 18(c), the trial 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." (emphasis added). In
contrast, section 566.025 only allows the propensity evidence
to be admitted if the probative value was not outweighed by
its prejudicial effect.
the enactment of Article I, section 18(c), Missouri appellate
courts have addressed the proper application of the amendment
on three occasions. First, in
State v. Rucker, this Court addressed whether the
trial court plainly erred in admitting evidence of the
defendant's prior sexual offenses. 512 S.W.3d at 68-70.
The defendant asserted the prejudicial effect of the evidence
substantially outweighed its probative value. Id. at
68-69. Our Court first held that because the amendment
provides a court "may exclude" relevant
propensity evidence if the probative value is substantially
outweighed by the danger of unfair prejudice, the trial court
had discretion to exclude such evidence and was not required
to exclude even if the probative value was substantially
outweighed by the prejudicial effect. Id. (emphasis
added). Then, our Court concluded any prejudicial effect
resulting from the evidence of defendant's prior
misconduct did not substantially outweigh its considerable
probative value to establish the defendant's motive and
intent. Id. at 69-70. In so holding, we noted the
trend of Missouri courts' "greater willingness to
allow evidence of prior sexual acts in sex crimes, especially
prior sexual acts committed against children."
Id. at 70.
the Southern District took up the issue of propensity
evidence under Article I, section 18(c) in State v.
Hood. 2017 WL 2482640 at *3-5. There, the defendant
asserted the trial court erred in admitting evidence of his
alleged previous sexual misconduct against his mother,
sister, and brother because the defendant's juvenile
adjudications were not "prior criminal acts" so as
to be admissible under the amendment. Id. at *3.
However, the Court found this argument without merit because
the propensity evidence admitted in defendant's trial was
testimony from his mother, sister, and brother regarding the
defendant's misconduct; no evidence regarding
defendant's juvenile adjudications or juvenile records
were admitted during his trial, and the witnesses did not
rely on or testify about his juvenile adjudications or
juvenile records. Id. at *4-5. Further, the Court
noted a flaw in defendant's argument, in that it
implicitly assumed, without citation to legal authority in