Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Caldwell County, Missouri The
Honorable Daren L. Adkins, Judge.
Before: Mark D. Pfeiffer, Chief Judge, and Alok Ahuja and
Anthony Rex Gabbert, Judges.
D. Pfeiffer, Chief Judge.
a jury trial, Mr. Terry Lee Lutes ("Lutes") was
found guilty of two counts of child molestation in the first
degree, for which Lutes was sentenced by the Circuit Court of
Caldwell County, Missouri ("trial court"), to two
consecutive twelve-year terms of imprisonment. Lutes appeals.
argues on appeal that the trial court abused its discretion
in: (1) admitting evidence of his three prior sex crimes
involving minor females; (2) refusing to permit him from
asking a question during voir dire regarding his
prior convictions; and (3) admitting evidence of the child
victim's out-of-court statements. We affirm.
March of 2014, while staying with his daughter and
granddaughter (L.B.), Lutes placed his finger in L.B.'s
vagina, removed his finger to lick it, and then re-inserted
his finger in L.B.'s vagina. Thereafter, he compelled
L.B. to hold his penis and masturbate him.
State charged Lutes with two counts of child molestation in
the first degree, as a prior offender, for manually touching
the vagina of his then six-year-old granddaughter, L.B., and
for forcing L.B. to touch his penis.
to trial, the State moved to be allowed to admit evidence
pursuant to article I, section 18(c) of the Missouri
Constitution. The State presented certified copies of three
previous pleas of guilty Lutes had made to sexual crimes
involving minors. The pleas of guilty resulted in the
following: (1) a 2004 conviction for statutory rape in the
second degree for having sexual intercourse with a
sixteen-year-old victim in 2001; (2) a 1994 conviction for
two counts of sexual assault in the first degree for having
sexual intercourse with a fourteen- or fifteen-year-old
victim in 1994; and (3) a 1993 conviction for sexual assault
in the first degree for having sexual intercourse with a
fourteen-year-old victim in 1993.
objected to the admission of the evidence, arguing, as
relevant to his appeal, that the prior convictions were not
legally relevant to the charged crime because they were too
remote in time and dissimilar in circumstances. The trial
court concluded that the propensity evidence was both
logically and legally relevant and that the probative value
of the evidence was not substantially outweighed by the
danger of unfair prejudice. Thus, the evidence of the three
convictions was admitted at trial over Lutes's objection.
Lutes was aware that the trial court intended to allow his
conviction history to be admitted at trial, his trial counsel
requested that he be allowed to ask the following question as
"his record" of the question he wished to ask
during voir dire of the venire panel:
I anticipate that the Prosecutor Joe will present during the
course of this trial evidence of Terry Lutes' prior
criminal conviction history regarding child molestation of
other young women. Would that fact cause anyone here knowing
that that could be presented to you as jurors present a
problem in any one of you being fair and impartial as jurors
in this case?
State objected, and the trial court responded that,
"I'm not going to let you ask that
[question]." (Emphasis added.) Defense counsel did not
submit an alternately phrased proposed question.
first trial, L.B. was present and testified, but that
proceeding resulted in a mistrial. In anticipation of the
second trial, the subject of the instant appeal, the State
made numerous attempts at ensuring L.B.'s presence at the
trial, including service of a subpoena by the Wabaunsee
County, Kansas Sheriffs Department commanding her to appear
and testify and obtaining an order from a judge in Kansas to
compel her attendance. A return of service showed that the
order was served to L.B.'s address. L.B.'s father,
however, informed the State that he refused to bring L.B.
back to Missouri to testify. Hence, at the second trial, L.B.
did not appear. The State argued that L.B. was, therefore,
"unavailable" to testify when various objections
were made by Lutes to the admission of evidence requiring
L.B.'s unavailability at trial, including a
video-recording of L.B.'s testimony at the first trial.
The trial court admitted the evidence.
evidence at the second trial was as follows. In 2014, L.B.,
her mother, and her half-brother went to live with her
half-brother's grandparents, John Giese
("Giese") and Lynda Sloan ("Sloan"). L.B.
and her family lived downstairs while Giese and Sloan lived
upstairs. In March of 2014, Lutes came to stay with
L.B.'s family for a few days. Giese walked downstairs one
of those mornings and saw L.B. sleeping on Lutes's bare
chest, which bothered Giese.
L.B.'s video-recorded testimony from the first trial,
[W]hen it was bedtime, [Lutes] said, "Come here, "
and I did because I was really tired and I just woke up to
get a glass of water .... So he grabbed my hand and he put it
down his pants, and then he rubbed it on his bad spot, and
then he took his finger and he licked it and he put it in my
private-my bad spot, and-he started to lick it again-and he
kept doing it.
Sunday after Lutes had left, L.B.'s mother asked Giese to
come downstairs. Giese testified that L.B. told him that
Lutes "in the middle of the night put his finger
down-down there and . . . she said he shook, and-and he put
... his finger in her, and then stuck it in his mouth and
licked it." He also testified that L.B. indicated that
Lutes also had her play with his penis. Giese accompanied
L.B. and her mother to the local police department. L.B. was
taken to St. Joseph, Missouri, for a forensic interview and
to Children's Mercy Hospital for a SAFEexam.
interviewer Trenny Wilson ("Wilson") testified
about the interview she conducted with L.B., which was
video-recorded. In the video, L.B. described Lutes touching
the inside of her "peepee" with his finger and
putting his finger in his mouth and then sliding it back into
her "skin." She said Lutes also put her hand in his
pants and forced her to touch his "boy's bad
presented no evidence in his defense. He was found guilty on
two counts of child molestation in the first degree and
sentenced to twelve years of imprisonment on each count to be
served consecutively. Lutes now appeals.
Point I, Lutes argues the trial court abused its discretion
in allowing the State to introduce evidence of his three
prior convictions for statutory rape and sexual assault,
under article I, section 18(c) of the Missouri Constitution,
because he contends the evidence was not legally relevant in
that any probative value was substantially outweighed by the
danger of unfair prejudice.
trial court's decision to admit Lutes's three prior
convictions for sexual assault of female minors under article
I, section 18(c), like all claims of evidentiary error, is
reviewed for an abuse of discretion and will not be disturbed
unless this court finds that the trial court's exercise
of discretion was clearly against the logic of the
circumstances. State v. Prince, 534 S.W.3d 813, 818
(Mo. banc 2017). "[I]f reasonable persons can differ
about the propriety of the action taken by the trial court,
then it cannot be said that the trial court abused its
discretion." Anglim v. Mo. Pac. R.R. Co., 832
S.W.2d 298, 303 (Mo. banc 1992). Further, this court reviews
the decision of the trial court for prejudice, not mere
error, and will reverse only if we find that the error was so
prejudicial as to deprive the defendant of a fair trial.
Prince, 534 S.W.3d at 818.
evidence is "evidence of uncharged crimes, wrongs, or
acts used to establish that a defendant has a natural
tendency to commit the crime charged." State v.
Shockley, 410 S.W.3d 179, 193 (Mo. banc 2013) (internal
quotation marks omitted). It is well established that
"proof of the commission of separate and distinct crimes
is not admissible unless such proof has some legitimate
tendency to directly establish the defendant's guilt of
the charge for which he is on trial." State v.
Primm, 347 S.W.3d 66, 70 (Mo. banc 2011) (internal
quotation marks omitted). The law permits the State to try a
defendant only for "the offense for which he is on
trial" and "[t]his precludes the State from
unjustifiably introducing evidence of a defendant's
prior, uncharged crimes or bad acts." State v.
Batiste, 264 S.W.3d 648, 650 (Mo. App. W.D. 2008)
(citing State v. Ellison, 239 S.W.3d 603, 606 (Mo.
evidence may be admitted for "purposes other than to
establish the defendant's propensities" to commit
the charged offense. Id. at 651. Such purposes
include establishing "motive, intent, absence of mistake
or accident, identity, or 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."
Evidence of prior criminal acts may be admissible for these
alternate purposes only if [it] 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 [it] is legally relevant, in
that its probative value outweighs its prejudicial
Id. (quoting Ellison, 239 S.W.3d at 607).
general standards, however, have been modified by recent
changes to the Missouri Constitution in cases involving
crimes of a sexual nature against minors. Article I, section
18(c) of the Missouri Constitution currently provides as
[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.
Court has previously noted, "in the context of sex
crimes involving minors, the provision unequivocally
supersedes the Supreme Court of Missouri's evidentiary
rulings that once prohibited propensity evidence."
State v. Matson, 526 S.W.3d 156, 158 (Mo. App. W.D.
2017). "The effect of Section 18(c) was to relieve
propensity evidence in certain types of cases from the
absolute ban on admissibility, assuming logical and legal
relevance is otherwise established."
appeal, Lutes does not argue that the challenged evidence was
not logically relevant but only challenges its
legal relevance in that he claims the trial
court's decision that the danger of unfair prejudice did
not substantially outweigh the evidence's probative value
was an abuse of discretion. More specifically, Lutes argues
that his previous convictions were too remote in time and
dissimilar to his present charges to have any probative
value, and additionally, the evidence should have been
excluded due to the substantial danger of unfair prejudice
resulting from its admission.
support of his arguments, Lutes cites to a number of cases
that were decided before the enactment of article I, section
18(c) and cases from foreign jurisdictions. Lutes neglects,
however, to cite to our own recent (and post-enactment of
article I, section 18(c)) Missouri Supreme Court precedent,
State v. Prince, squarely addressing the issue
presented in this appeal.
State v. Prince, the defendant was charged with
first-degree murder, felony abuse of a child, and forcible
sodomy for sexually assaulting and killing his
girlfriend's four-month-old daughter. 534 S.W.3d at
816-17. Specifically, the defendant was charged with sexually
assaulting the four-month-old infant child anally, causing
internal tearing that led to the infant losing one-third of
her blood supply; likewise, the defendant's assault also
included multiple bruises to the infant's face, chest,
and legs, as well as a cranial laceration, all as a result of
the sexual assault. Id. The State sought to admit
into evidence at his trial the defendant's previous
juvenile adjudication record for manual-to-genital contact
with his six-year-old niece, which occurred nine years before
the conduct at issue at trial. Id. The defendant
challenged the admission of the evidence, arguing that his
juvenile adjudication was too remote in time and dissimilar
to his present charges to be legally relevant. Id.
the defendant's argument that the juvenile adjudication
was too remote in time to be logically relevant because it
occurred nine years before the conduct at issue at trial, our
Supreme Court explained that there is no rigid rule regarding
when acts may be found to be too remote to be relevant, but
rather each such determination depends on the facts of the
case. Id. Remoteness in time must be considered
together with the factual similarities of the prior acts and
the current crime charged, as the issues are related.
Id. The Court then cited with approval a number of
cases from other jurisdictions, finding that various lengths
of time were not too remote, a number of which approved the
admission of evidence regarding events that had occurred over
twenty years before the crime charged. Id.; see United
States v. Emmert, 825 F.3d 906, 909 (8th Cir. 2016),
cert, denied, 137 S.Ct. 1349, 197 L.Ed.2d 535 (2017)
(admitting offense from up to twenty years prior to conduct
at issue); United States v. LeMay, 260 F.3d 1018,
1029-30 (9th Cir. 2001) (finding prior conduct committed
eleven years earlier when the defendant was twelve years old
admissible); United States v. Meacham, 115 F.3d
1488, 1494-95 (10th Cir. 1997) (finding prior sexual conduct
thirty years earlier was not too remote); State v.
Antonaras, 49 A.3d 783, 792 (Conn. App. Ct. 2012)
(admitting crimes from nine to twelve years prior); State
v. McGuire, 20 P.3d 719, 723 (Idaho Ct. App. 2001)
(admitting evidence of crimes from twenty-three years prior);
Smith v. State, 745 So.2d 284, 289
(Ala.Crim.App.1998) (finding the time interval of fourteen
and eighteen years not too remote to be inadmissible). And,
subsequent to the holding in Prince, another
Missouri court has held that prior misconduct occurring
twenty-plus years from the charged offense was not too remote
and, instead, was "still within the range of the cases
cited with approval in Prince'' State v.
Peirano, 540 S.W.3d 523, 529 (Mo. App. S.D. 2018).
the topic of similarity of the offenses, the Prince
court stated: "It is well established that the victim
and the conduct at issue need only be similar-not
identical-to sustain the admission of uncharged misconduct
evidence." Prince, 534 S.W.3d at 820 (internal
quotation marks omitted). The Prince court then went
on to conclude that the defendant's prior misconduct of
felonious manual-to-genital contact with a six-year-old minor
female relative nine years prior to the charged offense,
while not identical to sexually assaulting a four-month-old
non-relative infant female child anally, was
"similar enough in nature to be legally relevant."
Id. at 821.
the Prince court noted: "While the admission of
Prince's juvenile adjudication may have been prejudicial
to his defense, its probative value was not
substantially outweighed by the danger of unfair
prejudice." Id. The Court considered it
relevant that the State did not introduce the evidence at
trial in an inflammatory manner but only presented the
official adjudication record to the jury. Id.; see also
United States v. Kelly, 510 F.3d 433, 438 (4th Cir.
2007) (finding admission of official conviction record and no
inflammatory testimony to not be unfairly prejudicial).
Ultimately, the Court concluded that the trial court had not
abused its discretion in admitting Prince's prior
juvenile adjudication. Id.
recently, the Missouri Supreme Court issued its opinion in
State v. Williams, No. SC96478, 2018 WL 2016084 (Mo.
banc May 1, 2018), and again addressed legal relevance and
unfair prejudice in the context of article I, section 18(c).
In Williams, the defendant's prior "bad
act" was his plea of guilty in 1996 to first-degree
statutory sodomy for inserting his thumb in a minor female
child's vagina. Williams, 2018 WL 2016084, at
*1. Then, twelve to seventeen years later, the defendant
began molesting a minor female child repeatedly during the
ages of eight to thirteen by touching the minor child's
genitals and bottom and by forcing her to perform manual and
oral sex acts upon him. Id. at *2. In concluding
that the trial court carefully considered factors of legal
relevance (including remoteness in time and similarity of
conduct), the Williams court noted that the trial
court had conducted a hearing prior to the trial for the
express purpose of hearing and considering defense
counsel's objections to the prior bad act evidence and,
in so doing, the trial court had demonstrated its commitment
to careful consideration of the issues impacting legal
relevance of the evidence and was entitled to "the level
of deference that the 'abuse of discretion' standard
requires." Id. at *9.
Supreme Court then stated:
The determination of how much and what kind of probative
value particular propensity evidence may have, the nature and
extent of the danger of unfair prejudice presented by that
evidence, and whether the former is substantially outweighed
by the latter, are intensely case-specific
questions. The relevant factors to be considered in
deciding these questions will vary from case to case, as will
the weight to be afforded any one particular factor. As a
result, the factors set forth in this opinion, and the weight
given to those factors, are merely illustrative of the legal
relevance analysis article I, section 18(c) requires.
Id. at *10 (emphasis added).
equal importance to the Supreme Court in Williams
was an analysis of the risk of unfair prejudice. The Supreme
Court noted that there was less risk of prejudice where: the
jury knows that the defendant had been convicted for the past
criminal acts, id. at *11; the manner in which the
past criminal acts evidence is presented is by way of a
short, dispassionate presentation (as opposed to live
testimony from a former victim), id.; "if the
prosecution spends relatively little time on the issue of a
defendant's prior crimes and merely uses the evidence for
its proper purpose (namely, to suggest the defendant has a
propensity to commit the charged crime), the danger decreases
and may-on balance-not be unfair, " id. at *12;
"[f]inally, the state only mentioned Williams's
prior conviction twice during its closing argument, "
id. Given that the record in Williams
reflected that the prior conviction was reported to the jury
by way of a stipulated and dispassionate identification, no
live testimony from former victims was presented as evidence,
the prosecution spent little time on the issue of the
defendant's prior crime, and only mentioned the prior
conviction twice in its closing argument, the Court concluded
that "it simply cannot be said the state increased the
danger of unfair prejudice in this case by unduly emphasizing
Williams's prior criminal acts, and at no time did the
state implicitly or explicitly invite the jury to engage in
improper reasoning." Id.
the Williams court concluded that the trial court
had not abused its discretion in admitting evidence of
Williams's prior conviction.
within ten to twenty-one years prior to the current charged
offense, Lutes was convicted three times of felonious sexual
misconduct with minor females in which the principal purpose of
his misconduct was sexual gratification involving his penis
and his young victims' vaginas. Similarly, in the charged
offenses, Lutes was again seeking sexual gratification by
inserting his finger in his young victim's vagina and,
likewise, sought sexual gratification by compelling his young
female victim to masturbate his penis. The trial court held a
separate pre-trial hearing for the express purpose of hearing
and considering Lutes's objections to the "prior bad
act" evidence before ruling on the admissibility of the
evidence. The evidence was presented in the case in a short
and dispassionate fashion. And, the State only briefly
mentioned the prior conviction evidence once in closing
Prince and Williams, the evidence
concerning Lutes's previous convictions "had
considerable probative value and the danger of unfair
prejudice from that evidence was not great. This Court holds
the latter did not substantially outweigh the former and,
therefore, the [trial] court did not abuse its discretion by
admitting that evidence." Williams, 2018 WL
2016084, at *13.