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State v. Lutes

Court of Appeals of Missouri, Western District, Fourth Division

June 19, 2018


          Appeal 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.


          Mark D. Pfeiffer, Chief Judge.

         Following 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.

         Lutes 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.

         Factual Background[1]

         In March of 2014, while staying with his daughter and granddaughter (L.B.[2]), 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.

         The 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.

         Prior 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.

         Lutes 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.

         As 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?

         The 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.

         At the 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.

         The 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.

         In L.B.'s video-recorded testimony from the first trial, L.B. testified:

[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.

         The 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 SAFE[3]exam.

         Forensic 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 spot."

         Lutes 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.


         In 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.

         The 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.

         Propensity 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. banc 2007)).

         Such 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." Id.

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 effect."

Id. (quoting Ellison, 239 S.W.3d at 607).

         These 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 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.

         As this 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)[4] was to relieve propensity evidence in certain types of cases from the absolute ban on admissibility, assuming logical and legal relevance is otherwise established." Id.[5]

         On 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.

         In 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.[6] 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.

         In 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. at 820.

         Addressing 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).

         Regarding 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.

         Then, 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.

         More 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.

         The 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).

         Of 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.

         Ultimately, the Williams court concluded that the trial court had not abused its discretion in admitting evidence of Williams's prior conviction.

         Here, within ten to twenty-one years prior to the current charged offense, Lutes was convicted three times of felonious sexual misconduct with minor females[7] in which the principal purpose of his misconduct was sexual gratification involving his penis and his young victims' vaginas.[8] 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 argument.

         As in 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.

         Point I ...

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