Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis. Honorable
David L. Dowd Judge.
S. ODENWALD, JUDGE.
Banks ("Banks") appeals from the judgment of the
trial court, entered after a jury convicted him of
first-degree child molestation and first-degree statutory
sodomy. On appeal, Banks challenges the trial court's
admission of a witness's testimony regarding prior
incidents of uncharged child molestation alleged to have
occurred decades before the charged crime. Because the
witness's propensity-evidence testimony was admissible
under the Missouri Constitution article I, section 18(c), and
the potential danger of unfair prejudice does not
substantially outweigh the evidence's probative value, we
find that the trial court did not abuse its discretion in
admitting the evidence. Accordingly, we affirm the judgment
of the trial court.
and Procedural History
September of 2016, Banks's daughter ("Mother")
and her husband ("Father") lived with Banks and his
wife ("Wife"). One day, while Mother and
Father's daughter ("Child") was visiting
Father's mother ("Grandmother"), Child climbed
into Grandmother's bed to watch television. Child, who
was five at the time, spontaneously told Grandmother "I
can't tell." After further prompting, Child
communicated to Grandmother that while she was bathing at
Banks's house, she told Banks that she could bathe
herself, but he said he forgot and began playing with her
"tutu"-the term Child used to refer to her vagina.
Child mentioned that she did not want to tell because she did
not wish for Father and Banks to fight. While Child talked
about the incident, she looked "kind of sad, and she had
little tears in her eyes[.]" Grandmother knew that Child
was able to bathe herself. Grandmother also recognized that
Child required medicine for Child's eczema, but Child
never needed treatment on her vagina.
informed Father and Mother of Child's accusation. Mother
then reported the incident to the police. Following further
investigation, the State charged Banks with two counts of
first-degree child molestation for two separate instances
involving Child, one count of first-degree statutory sodomy
for forcing Child to rub his penis, one count of third-degree
domestic assault, and one count of incest. The State
subsequently dropped the third-degree domestic assault and
incest charges. The case proceeded to a jury trial.
pre-trial proceedings, the trial court conducted a hearing to
review the State's motion to produce evidence of prior
criminal acts. Both parties briefed the issue. Based on the
parties' briefs and arguments at the hearing, the trial
court determined that Mother's proposed testimony
considering Banks's prior alleged criminal acts of
sexually abusing Mother was relevant, because that evidenced
corroborated Child's testimony and demonstrated
Banks's propensity to commit the charged crimes.
Additionally, the trial court found that the risk of
prejudice that a jury could convict Banks based on the
propensity evidence alone did not substantially outweigh the
probative value of corroborating Child's testimony.
trial, Child testified that one day while in Banks's
bedroom, as Child laid on the bed, Banks stood over her. Wife
was not present at the time. With his pants down, Banks
"sticked [sic] his private[s] in [Child's]
face." Additionally, Banks touched the bare skin of
Child's private area with his hand. Banks told Child if
she told anyone, she would "get a whipping."
testified at trial. Mother was emotionally distraught
throughout her testimony. Mother mentioned that she had
specific instructions for caring for Child-Child must not be
left alone and only she or Wife could bathe Child:
Q: We talked a couple times about the special conditions you
had, the guidelines you have for people relative to [Child],
Q: So only you and your mom could bathe her, right?
A: Yes, sir.
Q: You only wanted your mom to be there when she babysat,
A: Yes, sir.
Q: And only you and your mom can put the medicine on [Child],
Q: It seems like, fair to say, you didn't want any men
doing those things, right?
Q: And why did you have those conditions for your ...