FROM THE CIRCUIT COURT OF CASS COUNTY, The Honorable William
B. Collins, Judge.
C. WILSON, JUDGE.
convicted Travis Williams ("Williams") of three
counts of first-degree statutory sodomy. See §
566.062.1, RSMo. The circuit court sentenced Williams as a
predatory sexual offender to three concurrent sentences of
life imprisonment without the possibility of parole for 50
years. See § 558.018.2. Williams appealed, and
the court of appeals transferred the case to this Court on
the ground that the appeal raised an issue within the
exclusive appellate jurisdiction of this Court as set forth
in article V, section 3, of the Missouri Constitution. That
issue is whether article I, section 18(c), added to the
Missouri Constitution in 2014, violates due process.
I, section 18(c) is an amalgam of Federal Rules of Evidence
414 and 403. Every federal circuit that has considered a
similar due process challenge has rejected it. See, e.g.,
United States v. LeMay, 260 F.3d 1018, 1024-27 (9th Cir.
2001) (rejecting claim, in part because of the protections
provided by Rule 403, that Rule 414 violates due process on
its face); United States v. Castillo, 140 F.3d 874,
881 (10th Cir. 1998) (same). For similar reasons, this Court rejects
Williams's due process challenge to article I, section
Court also rejects Williams's claims that the circuit
court misapplied this provision either: (1) by failing to
make an express finding the probative value of Williams's
prior conviction was not substantially outweighed by the
prejudicial effect of that evidence, or (2) by admitting that
evidence even though its probative value was substantially
outweighed by its prejudicial effect. Accordingly, the
judgment is affirmed.
November 1996, Williams, then 26 years old, pleaded guilty to
first-degree statutory sodomy for inserting his thumb in a
minor child's vagina. He was sentenced to five years in
prison but, after completing a 120-day program in a sex
offender assessment unit, execution of his sentence was
suspended and he was placed on probation for five years. In
1999, Williams violated his probation and his sentence was
executed. Williams was released from prison in 2003.
after Williams was released from prison, he began dating T.W.
("Mother"), the biological mother of M.E.E.
("Victim"). Early in their relationship, Williams
informed Mother he had a prior conviction for sexually
molesting a young girl. Mother continued to maintain a
relationship with Williams and later introduced Williams to
M.E. ("Father"), Victim's biological father. At
the time, Mother and Father were still living together. When
Father discovered Williams was a registered sex offender, he
repeatedly told Mother he did not want Williams around the
children. In February 2004, Mother left Father and took
Victim and Victim's two older siblings with her. Shortly
thereafter, Mother allowed Williams to move in with her and
her children. In 2005, Mother married Williams.
first instance of abuse to which Victim testified occurred in
2008, when she was roughly eight years old. Victim recalled
she stayed home from school to recover from an illness.
Williams was the only other person in the home at the time.
Victim and Williams were eating candy and, when Victim said
she wanted the last piece, Williams told her she could not
have it unless she took "off all [her] clothes and let
him play with [her] butt." Williams eventually coerced
Victim into taking off all her clothes in his bedroom and
touched her bottom while playing with himself. Williams
continued to abuse Victim until the latter part of 2013 by
touching Victim's genitals and bottom and by forcing her
to perform manual and oral sex acts upon him, usually when no
one else was home. The frequency of Williams's abuse
declined after Williams and Mother separated in 2012, though
Williams continued to abuse Victim on some occasions.
September 2013, Victim reported Williams's abuse to the
police. Shortly thereafter, the state charged Williams with
three counts of first-degree statutory sodomy.The state subsequently
filed an information in lieu of indictment alleging Williams
should be sentenced as a predatory sexual offender.
to article I, section 18(c) of the Missouri Constitution, the
state filed a pretrial motion to admit evidence of
Williams's 1996 conviction on the ground it demonstrated
his propensity to commit the offenses with which he was
charged. Over Williams's objection, the circuit court
granted the state's motion but specified that, unless the
parties later disagreed, the state would be limited to
proving Williams's prior plea by way of a stipulation.
case was tried to a jury in February 2015. Over
Williams's objection,  the stipulation was read to the jury. At the end
of the three-day trial, the jury convicted Williams of all
three counts of first-degree statutory sodomy. After the jury
rendered its verdicts, Williams moved for a new trial on
several grounds. The circuit court overruled Williams's
motion, concluded he was a predatory sexual offender in light
of his prior conviction, and sentenced him to three
concurrent sentences of life in prison without the
possibility of parole for 50 years. Williams appeals, and
this Court has jurisdiction under article V, section 3, of
the Missouri Constitution.
challenges the constitutionality, proper construction, and
application of article I, section 18(c), which Missouri
voters added to the Missouri Constitution in 2014. In its
entirety, this section provides:
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, § 18(c). This amendment was adopted
with the evident purpose of abrogating State v.
Ellison, 239 S.W.3d 603, 607-08 (Mo. banc 2007), and its
raises three main points. First, he contends article I,
section 18(c), on its face, violates due process. Second,
Williams contends the circuit court erred in admitting
evidence of his 1996 guilty plea and conviction for
first-degree statutory sodomy without first making an express
finding that the probative value of this evidence was not
substantially outweighed by its danger of unfair prejudice.
Finally, Williams contends the circuit court erred in
admitting evidence of his prior criminal act because the
danger of unfair prejudice from that evidence substantially
outweighed its probative value. The Court rejects each of
argues article I, section 18(c), on its face, violates due
it allows admission of evidence of prior criminal acts in the
prosecution's case-in-chief to prove a defendant has the
propensity to commit the charged crime. Williams must bear a
heavy burden to prevail on this claim because there is
"a strong presumption in favor of [the amendment's]
validity." Wilson v. Washington Cty., 247 S.W.
185, 187 (Mo. 1922). Williams can overcome this presumption
only by demonstrating the admission of propensity evidence
pursuant to the amendment - in any case and under any
circumstances - violates due process. See State v.
Jeffrey, 400 S.W.3d 303, 308 (Mo. banc 2013) (a party
raising a facial challenge must show there is "no set of
circumstances … under which the [challenged law] may
be constitutionally applied").
prove the amendment violates due process, Williams must show
that admitting propensity evidence pursuant to the amendment
"offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental." Montana v. Egelhoff, 518 U.S. 37,
43 (1996) (citation omitted). To make such a showing,
Williams must demonstrate a rule forbidding the use of
propensity evidence in prosecutions for sex offenses
committed against minors is a "fundamental principle of
justice." Id. Historical practice is this
Court's primary guide in deciding whether there is such a
rule and whether that rule is a "fundamental principle
of justice." Id. "Judges are not free, in
defining 'due process, ' to impose … our
'personal and private notions' of fairness and to
'disregard the limits that bind judges in their judicial
function.'" United States v.
Lovasco, 431 U.S. 783, 790 (1977) (quoting Rochin v.
California, 342 U.S. 165, 170 (1952)).
starting point, it is safe to say a general prohibition
against the use of propensity evidence in criminal cases has
been firmly engrained in American jurisprudence throughout
much of the nation's history.
Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the prosecution
to any kind of evidence of a defendant's evil character
to establish a probability of his guilt. Not that the law
invests the defendant with a presumption of good character,
but it simply closes the whole matter of character,
disposition and reputation on the prosecution's
case-in-chief. The State may not show defendant's prior
trouble with the law, specific criminal acts, or ill name
among his neighbors, even though such facts might logically
be persuasive that he is by propensity a probable perpetrator
of the crime. The inquiry is not rejected because character
is irrelevant; on the contrary, it is said to weigh too much
with the jury and to so overpersuade them as to prejudge one
with a bad general record and deny him a fair opportunity to
defend against a particular charge. The overriding policy of
excluding such evidence, despite its admitted probative
value, is the practical experience that its disallowance
tends to prevent confusion of issues, unfair surprise and
Michelson v. United States, 335 U.S. 469, 475-76
(1948) (citation and footnotes omitted). Since
Michelson, the Supreme Court has continued to praise
the common law tradition of excluding propensity evidence,
e.g., Old Chief v. United States, 519 U.S.
172, 180-82 (1997), though it has never squarely held due
process forbids the admission of propensity evidence in the
prosecution's case-in-chief, e.g., Estelle
v. McGuire, 502 U.S. 62, 75 n.5 (1991).
even if this Court were to conclude the general ban against
propensity evidence is "so rooted in the traditions and
conscience of our people as to be ranked as fundamental,
" Egelhoff, 518 U.S. at 43, this would not aid
Williams's argument. Article I, section 18(c) does not
purport to allow the use of propensity evidence in all
criminal cases. Instead, the amendment only allows the use of
such evidence "in prosecutions for crimes of a sexual
nature involving a victim under eighteen years of age."
The historical practice regarding the use of propensity
evidence in these limited circumstances weighs decidedly
against Williams. See LeMay, 260 F.3d at 1025
(historical practice has routinely, if not uniformly, allowed
the use of propensity evidence in such circumstances).
practice of admitting evidence of the defendant's prior
sexual misconduct for purposes of proving the defendant's
propensity to commit the sex offense with which he was
charged has long been a feature of American law. See
People v. Jenness, 5 Mich. 305, 320 (1858)
("[C]ourts in several of the states [have] shown a
disposition to relax the rule [barring propensity evidence]
in cases where the offense consist[ed] of illicit intercourse
between the sexes."). See also Leonard,
supra, § 3.3.6 at 145-55 (examining sex offense
cases and concluding some nineteenth century courts
"almost certainly violated the ban on character as
circumstantial evidence of conduct" in such cases);
Thomas J. Reed, Reading Gaol Revisited: Admission of
Uncharged Misconduct Evidence in Sex Offender Cases, 21
Am. J. Crim. L. 127, 168-69 (1993).
early part of the 20th century, a significant number of state
courts allowed the introduction of evidence of sexual
misconduct between a defendant and his victim (of any age)
for the purpose of proving the defendant's propensity to
commit the sex offense with which he was charged. See,
e.g., Reed, supra, at 169-82. See also
L.S. Tellier, Annotation, Admissibility, in Prosecution
for Sexual Offense, of Evidence of Other Similar
Offenses, 167 A.L.R. 565 (1947) (collecting
authorities). At the time, this rule was characterized as a
well-recognized exception to the general ban on propensity
evidence. For example, in State v. King, 119 S.W.2d
277, 283 (Mo. 1938), this Court explained the admission of a
defendant's prior sexual misconduct with the victim for
propensity purposes is "almost universally …
allowed in prosecutions for crimes involving the sexual
relation, such as adultery, incest, lewdness, rape,
seduction, and sodomy." See also People v.
Swift, 138 N.W. 662, 666-67 (Mich. 1912) (explaining
that a "long recognized and well established"
exception to the "rule that the prosecution may not
prove another and distinct offense of the same kind for the
purpose of rendering it more probable that [the defendant]
committed the ...