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State v. Banks

Court of Appeals of Missouri, Eastern District, Second Division

September 10, 2019

STATE OF MISSOURI, Respondent,
v.
JOE H. BANKS, Appellant.

          Appeal from the Circuit Court of the City of St. Louis. Honorable David L. Dowd Judge.

          KURT S. ODENWALD, JUDGE.

         Introduction

         Joe H. 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.

         Factual and Procedural History

         In 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.

         Grandmother 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.

         During 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.

         At 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."

         Mother 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], right?
A: Yeah.
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, right?
A: Yes, sir.
Q: And only you and your mom can put the medicine on [Child], right?
A: Yes.
Q: It seems like, fair to say, you didn't want any men doing those things, right?
A: Yes.
Q: And why did you have those conditions for your ...

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