Other crimes and bad acts evidence in Missouri
Vol.75, No.2 / March - April 2019
Heidi Thomas glared at Bill Cosby’s lawyer from the witness stand when asked why she was testifying. “I want to see a serial rapist convicted,” she said. She was not the victim of the charged crime in Cosby’s trial for sexually assaulting Andrea Constand by drugging and molesting her, but rather one of five women the judge permitted to testify about other bad acts committed by Cosby.
H. Morley Swingle
Heidi Thomas glared at Bill Cosby’s lawyer from the witness stand when asked why she was testifying. “I want to see a serial rapist convicted,” she said. She was not the victim of the charged crime in Cosby’s trial for sexually assaulting Andrea Constand by drugging and molesting her, but rather one of five women the judge permitted to testify about other bad acts committed by Cosby.
The 2018 Cosby prosecution is a high-profile example of the importance of other crime evidence. In his first trial, when only one woman besides Constand testified about being sexually assaulted by Cosby, the jury hung. In the second trial, when five additional victims told their stories, Cosby was found guilty. The law of other crimes evidence is important and complicated but recent Missouri appellate cases, jury instructions, and even a constitutional amendment have clarified for practitioners the proper test to use when deciding whether other crimes and bad acts evidence is to be admitted.
General Rule: Propensity Evidence Not Admissible
The general rule is that evidence of other crimes committed by the defendant is not admissible. It is considered propensity evidence, meaning there is a risk the jury will find the defendant guilty of the charged crime simply because he committed other crimes in the past and therefore has shown a propensity to be a criminal. The Supreme Court of Missouri recently explained that propensity evidence is prohibited because “it is said to weigh too much with the jury and to overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” But like many other general rules, it has exceptions.
The Supreme Court of Missouri has recognized six specific exceptions to the general rule disallowing evidence of other crimes. Other crime evidence can be allowed when it is offered to prove “(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan . . . ; (5) the identity . . . ;” or (6) to give “a complete and coherent picture of the events . . . .” The Supreme Court of Missouri has made it clear that this list is not exclusive, and that such evidence may also be admitted – even when it does not fit into one of the six listed exceptions – when it is logically and legally relevant. It “is logically relevant if it tends to make the existence of a material fact more or less probable.” It is legally relevant when its probative value outweighs any “unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or cumulativeness.” On the other hand, even if the evidence falls into one of the six listed exceptions, it must still be kept out if its prejudicial effect outweighs its probative value. Thus, the trial judge must always conduct a weighing test balancing the probative value against the prejudicial effect any time evidence of other crimes or bad acts is offered. In conducting the weighing test, the trial court should consider four factors: (1) “How clearly has the proponent proven that the defendant committed the uncharged act?”; (2) “How probative of the material fact in issue . . . is the uncharged misconduct?”; (3) “How seriously disputed is that material fact?”; “And [(4)] does the proponent have other, less prejudicial evidence available to prove the [material] fact in consequence?”
Motive is one of the more common examples allowing the admission of other crimes and bad acts evidence. For example, when a defendant was on trial for the murder of a St. Louis County police officer who stopped him on a pedestrian check, the prosecution was allowed to present evidence that at the time the man was stopped by the officer, he was out on bond on a rape charge with a bond condition that he remain at home with his parents. The evidence of the pending rape charge and bond condition was “relevant and admissible” to prove the motive to kill the officer. Likewise, in a case where a defendant was on trial for murdering his wife and her teenage daughter, the prosecution was permitted to introduce evidence that he was out on bond on pending sodomy charges relating to two other daughters, and that he killed the mother and her daughter because they had decided not to testify for him in his impending trial.
In murder and assault cases, the defendant’s prior assaults upon the same victim are usually admissible to show the defendant’s motive and desire to hurt that particular person. Still, the probative value must outweigh the prejudicial effect. In State v. Wallace, the defendant shot his girlfriend in front of a witness and confessed, never claiming accident or mistake. The trial court allowed the prosecution to present evidence of five prior assaults upon the victim, including a tape-recording of one of them. The conviction was reversed since the prejudicial effect outweighed the probative value.The court must always be careful when weighing the probative value against the prejudicial effect. In a case where a defendant was being tried for robbery, drugs were found in his home at the time of his arrest four days after the robbery. The prosecution was allowed to introduce evidence about the drugs in the home on the theory that getting money to buy drugs might have been the motive for the robbery. The conviction was reversed because the court concluded that simply because a robber had drugs in his home did not mean drugs were necessarily the motive for the robbery. The court noted that, in order to be admissible, there must be some proof establishing drugs as the motive, such as that the defendant was an addict, or that he admitted stealing the money for the purpose of supporting a drug habit, or that he was planning to pawn the items to get money to buy drugs.
Other crimes and bad acts evidence are often admissible to show the defendant’s intent to commit a particular crime. For example, in a case where a male Hardee’s employee was being prosecuted for raping a female employee in her apartment on a particular night, evidence that minutes earlier he had forcibly fondled three other female Hardee’s employees was admissible to show his intent for immediate sexual gratification that night.
In order to be admissible to prove intent, the question of whether the defendant had the particular intent must be an issue in the case. For example, when a defendant was on trial for unlawful merchandising practices for swindling four homeowners by falsely claiming their homes needed basement foundation work, his intent to defraud was an issue. Thus, evidence that he performed the same con on four other victims, all within the same year, was allowed. Similarly, when a defendant is being prosecuted for possession of burglar’s tools, his intent to use the crow bar in his possession to commit a burglary can be shown by proof he committed prior burglaries. Likewise, in a drug case where the defendant was charged with possession of marijuana and cocaine with the intent to sell, evidence that the defendant sold drugs five days before the current possession was admissible to show his intent. Similarly, in a case where the defendant was being prosecuted for a fully operational meth lab in his home, he claimed he did not know it was there, so other crime evidence was admitted that when he was arrested the same day officers found methamphetamine, a syringe, and a gun on him.
Once again, however, the judge must be careful to conscientiously weigh the probative value against the prejudicial effect. In a case where a defendant was charged with making one sale of cocaine to an informant, the prosecution was allowed to introduce evidence that the defendant made eight other uncharged cocaine sales to the same informant within two weeks preceding the charged sale. Since the defendant had not offered any evidence, the appellate court found that the prejudicial effect of the uncharged sales outweighed the probative value and the evidence should have been excluded.
Absence of Mistake or Accident
One of the clearest examples of when probative value exceeds prejudicial effect comes up in cases where the defendant claimed he committed the charged crime by mistake or accident. For example, there are a surprising number of cases where a husband shot his wife but claims the gun went off accidentally. In such cases, evidence of his prior beatings of the late wife is admissible to cast doubt on his claim of accident. Likewise, when a defendant mother claims the injuries to her child were accidentally inflicted, evidence of prior beatings of the child is admissible. Similarly, if a defendant is caught leaving a store without paying for merchandise and claims he simply forgot to pay, evidence of prior shoplifting incidents would be admissible.
Common Scheme or Plan
Evidence of other crimes or bad acts can be admissible to show the defendant’s charged crime was part of 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 by the fact the uncharged crime is part of a single plan that also encompasses the charged crime or is part of or preparation for the charged crime. A classic example is State v. Laws, where the defendant was on trial for passing a forged check at a grocery store. The prosecutor was allowed to admit evidence that on the same day the defendant also passed other forged checks on the same account at two other stores. The court noted that this case “is perhaps one of the best examples of a common scheme or plan.” Another example occurred where a man stole a gun one month before a murder in order to use it to commit the murder. On the other hand, in a case where a dentist was on trial for raping his dental assistant when he incapacitated her with nitrous oxide, evidence that he had fondled the breasts of three other women when treating them as patients was not so similar to amount to a common scheme or plan to assault women in his clutches. Likewise, where a defendant was being prosecuted for rape of an adult victim, the conviction was reversed due to the admission of evidence that he had raped another woman six years earlier. The court noted that these attacks committed six years apart were not part of an overall common scheme or plan.
Identity is one of the more interesting exceptions to the general rule excluding other crime evidence. The Supreme Court of Missouri referred to an Alabama case as a “classic example” of a situation where other crime evidence is admissible to show identity. In Jones v. State, the defendant was charged with luring his victim into an empty barn, where he was robbed at gunpoint by a second man adorned in a distinctive Halloween mask and black wig. The other crime evidence came from an undercover officer, who allowed himself to be lured to the same location two weeks later by this defendant, and once again a second man leaped out, dressed in the Halloween mask and black wig, and tried to rob the undercover officer. The “signature” modus operandi was allowed to prove the identity of the defendant (who was captured in the second incident) as the perpetrator of the charged earlier robbery. Significantly, the Jones court noted that the defendant put identity in issue merely by cross-examining the witnesses on the identity question.
In a recent identity exception case, the defendant was charged with stealing a money bag from the back office of a Farm Fresh Milk store. The crime was caught on surveillance video. Although the thief’s face was not visible, he was driving an orange Pontiac Grand Prix with purple stripes and wore a baseball cap. The Supreme Court of Missouri approved the admission of other crime evidence consisting of the following: (1) the next day a man of similar description went into the kitchen area of a sandwich shop, acted suspicious, and left in an orange Grand Prix with purple stripes; (2) two days after the Farm Fresh theft, a man of similar description was caught on video parking an orange Grand Prix with purple stripes and going into Missy’s Family Restaurant and taking money; and (3) two weeks later the defendant was caught driving the orange Pontiac Grand Prix and possessing a baseball cap. The other crime evidence was admissible to prove the man caught in the orange Grand Prix was the same man who stole the money bag at Farm Fresh.
When balancing probative value versus prejudicial effect under the identity exception, the trial judge should keep in mind that there must be more than just similarity between the charged crime and the offered evidence. For example, in State v. Davis, the defendant was charged with robbing a Frontier IGA in St. Charles. At trial, the prosecution offered evidence that the same pair of robbers had robbed a bar in Hazelwood four days earlier. Although the robberies bore similarities (both involved a pair of stocky white men carrying similar guns and wearing ski masks and gloves), they had differences, too. At the IGA, the shorter man did the talking, whereas in Hazelwood the taller man did so. At the IGA, the robbers assured the victims that no one would be hurt, whereas in Hazelwood the robbers threatened to shoot a customer. The Supreme Court of Missouri noted that when identity is the exception urged by the State, “there must be more than mere similarity between the crime charged and the uncharged crime. The charged and uncharged crime must be nearly ‘identical’ and their methodology ‘so unusual and distinctive’ that they resemble a ‘signature’ of the defendant’s involvement in both crimes.”
Complete and Coherent Picture of Events
An additional exception recognized in Missouri is for evidence of uncharged crimes or bad acts that are part of the circumstances or the sequence of events surrounding the offense charged. This evidence is admissible to present a complete and coherent picture of the events that transpired. Two leading cases involving this issue are State v. Morrow and State v. Skillicorn.
In Morrow, the defendant was on trial for a murder committed during a robbery. Evidence of his many other crimes committed during the three-day crime spree (robberies, thefts, and murder to get money for crack cocaine) was admitted “to present to the jury a complete and coherent picture of the charged crimes and to rebut Morrow’s contention that he lacked the ability to deliberate.” The Supreme Court of Missouri added:
Although Morrow would have liked to limit the focus of the jury’s attention to only five of the many crimes he committed during the crime spree, those crimes alone would not have fully and fairly presented a complete and coherent picture of the crimes charged and the whole truth to the jury.
In Skillicorn, the defendant was one of three hitchhikers charged with murdering a Good Samaritan who picked them up. In this defendant’s murder trial, the court allowed other crime evidence that, before the victim encountered the killers, they had burglarized a home, taken guns, and then used one of the guns to kill the Good Samaritan, and then committed yet another burglary and robbery while on the run. The Supreme Court of Missouri ruled the probative value outweighed the prejudicial effect because the state was required to prove deliberation, and the defendant had not been the triggerman; thus, the evidence of other crimes was particularly relevant because if he had not been deliberately involved, he had plenty of opportunity both before and after the murder to distance himself from the crime spree, rather than work as part of the team.
In State v. Primm, a defendant was charged with sexually molesting a teenage victim. The uncharged other crime was that the defendant had given marijuana to the teenage victim he seduced. The Supreme Court of Missouri upheld the admission of this evidence because it gave a “more complete picture of the crimes.”
In State v. Taylor, a defendant was on trial for resisting arrest and the prosecution was allowed to show the existence of two arrest warrants for parole violation in order to “provide a clear and coherent narrative of the circumstances preceding his arrest” and to help explain to the jury why the officers had gone into his home to arrest him.
Residual Category (Probative Value Versus Prejudicial Effect)
The Supreme Court of Missouri has stated that the six enumerated exceptions were never intended to be an exclusive list of categories into which evidence must fall in order to be admitted; rather, the test is whether the other crime evidence is “both logically and legally relevant.” It is logically relevant when it tends to prove a material fact in issue. It is legally relevant when its probative value outweighs its prejudicial effect. Thus, good news for prosecutors is that other crimes evidence that does not fit squarely into one of the six enumerated exceptions can still be admissible when its probative value exceeds its prejudicial effect. On the other hand, bad news for prosecutors is that even if the evidence fits cleanly into one of the exceptions, it can still be kept out if its prejudicial effect exceeds its probative value. A judge should conduct this weighing test any time such evidence is offered.
A Matter of Missouri Constitutional Law
The Supreme Court of Missouri has made it clear that the rule prohibiting propensity evidence is not only an evidentiary rule but is also a matter of Missouri constitutional law. In State v. Burns, the Court announced that the admission of such evidence violates Article I, §§ 17 and 18(a) of the Missouri Constitution in that it thwarts the “guarantee [to] a criminal defendant” that he will “be tried only on the offense charged.” The Court noted that although recent cases did not cite to the Constitution, the Missouri Constitution is violated when the prejudicial effect of such evidence outweighs its probative value. Although the Burns result excluding evidence of other crimes in a child sexual assault case was later overturned when the Missouri Constitution was amended to specifically allow propensity evidence in cases where the charged crime is one of a sexual nature against a victim under 18 years of age, such a challenge could still be leveled against the legislature’s statutory effort to make prior domestic violence convictions within five years admissible and its legislative attempt to make all prior auto tampering by a defendant admissible in tampering cases.
Child Sexual Molestation Cases
The Missouri Constitution was amended in 2014 to specifically allow propensity evidence in cases involving sexual crimes on children under 18. The amendment reads:
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.
The amendment applies prospectively “to all trials occurring on or after December 4, 2014,” regardless of when the crimes were alleged to have occurred.To paraphrase Mark Twain, the propensity amendment was the culmination of a short history of a campaign that failed. The Supreme Court of Missouri and the Missouri General Assembly battled for years as to whether propensity evidence would be admissible in child molestation cases. The legislature passed a statute specifically allowing the admission of such evidence in child sex cases in 1994, but the Court struck it down as unconstitutional under the Missouri Constitution in 1998. The legislature went back to the drawing board and enacted a new version in 2000, but the Supreme Court found it unconstitutional in 2007. Finally, the legislature took the matter directly to Missouri voters and the propensity amendment won by a landslide with 71.983 percent of the vote.
In 2018, the Supreme Court of Missouri took up the constitutionality of the propensity amendment. After recognizing the absurdity of trying to claim the Missouri Constitution violates itself, the Court found that the propensity amendment does not violate the United States Constitution, noting that the amendment is virtually identical to a federal statute held constitutional by every federal circuit to consider it.
The Court also ruled that when determining the admissibility of other crime evidence in child sex cases, the trial court should conduct a balancing test to decide whether the “probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice.” The addition of the word “substantially” is what makes the weighing test in child sex cases different from other types of cases. The determination of probative value versus unfair prejudice will be a case-specific question. Factors to consider include: (1) how sufficient is the proof that “the defendant actually committed the prior criminal act”; (2) does it really “show the defendant . . . had a propensity to commit the charged crime”; (3) how strong is the prosecution’s need for the propensity evidence; (4) is there a risk the jury will believe the defendant was not adequately punished for the prior criminal act and try to take it out on him now; (5) is the prosecution being unfair and overzealous in the manner in which it presents the other crime evidence at the current trial; and (6) is the evidence of the prior criminal act so bad or gruesome that it eclipses or overshadows the current charged crime.
So far, all appellate cases addressing the admissibility of other crime evidence under the propensity amendment have favored the prosecution. In State v. Prince, the defendant was on trial for the murder and sodomy of a four-month-old infant. Propensity evidence was allowed revealing that when he was 15, the defendant received a juvenile adjudication in Idaho for sexual abuse of a six-year-old niece. The Supreme Court of Missouri held that a juvenile adjudication counts as a criminal act for purposes of the amendment, and that the remoteness in time of the incident went to its weight, not its admissibility. The Court agreed with the trial court that the prejudicial effect did “not substantially” outweigh the probative value. Lower appellate courts have reached similar results in at least seven cases in 2017 and 2018.
Signature/Modus Operandi Exception
For a period of time in Missouri (from 1993 to 2008), case law recognized the “signature modus operandi corroboration exception.” The complicated exception was created in State v. Bernard, and allowed other crime evidence that did not fit into other enumerated exceptions to be admitted to corroborate the victim’s testimony when two or more crimes (the charged and uncharged) were so related to each other that proof of one tended to establish the proof of the other in that their methodology was nearly identical and so unusual and distinctive that they resembled a signature of the defendant’s involvement in the crimes. The Supreme Court of Missouri abolished this as a specific exception, holding that admitting similar prior crimes to corroborate victim testimony when identity was not really an issue in the case allowed propensity evidence to come in “masquerading under the well-recognized identity exception.”
Other Issues Involving Other Crimes and Bad Acts Evidence
In addition to the general rule of inadmissibility and its clearly-listed exceptions, a criminal law litigator should be familiar with certain other potential issues in regard to other crimes and bad acts evidence. These matters come up frequently.
Attempts to Escape or Avoid Prosecution or Intimate Witnesses
Evidence of other crimes is often admissible to show that the defendant tried to escape or otherwise avoid prosecution or tamper with witnesses. A defendant’s “flight or escape from jail is generally admissible [in the trial for the crime for which he was being held] to show a consciousness of guilt.” Other crimes the defendant committed during that escape constitute relevant and admissible evidence. Likewise, attempts to resist arrest by fleeing are typically admissible to show the defendant’s consciousness of guilt.
Similarly, testimony that a defendant made threats to a witness after the offense but before the trial is admissible because it “show[s] a consciousness of guilt or a desire to conceal the offense.” The Western District noted: “[T]hreatening a witness is ‘inconsistent with the demeanor of an innocent person who in self-defense accidentally shot someone.’”
Likewise, proof that a defendant tried to bribe a witness to testify falsely is admissible at the trial for the underlying offense. Bribing another person shows a consciousness of guilt. “[T]he assumption is that the typical, innocent person [will] not resort to attempted bribery.”
In the same vein, attempts to destroy or tamper with evidence are admissible. For example, in a case where the defendant was on trial for assault with intent to kill, evidence was admitted that he stole and forged hospital records because they disproved his alibi. In a murder case where the victim had a bite mark on her breast, evidence was admitted that after the State made a motion for dental impressions, the defendant intentionally damaged his teeth. Likewise, in a case where a defendant was on trial for robbery, he altered his appearance by shaving his goatee and parting his hair in a different place after being told he would be in a physical lineup. Under the same analysis, the use of an alias or disguise for false identification is admissible as proof of a defendant’s consciousness of guilt. Its probative value generally outweighs any prejudicial effect.
Non-Specific Brief References to Other Crimes
Occasionally, a witness will purposely or accidentally make a brief reference to another crime when on the stand. Generally, such a reference does not amount to reversible error. These references often occur when a police officer mentions that he used a defendant’s mug shot when putting together the photo lineup, or an arresting officer says the defendant urged him to give him a break because “this ‘would send him back to the pen,’” or a witness says the defendant had a parole officer, or an expert witness uses a fingerprint card for a prior offense to lay the foundation for a fingerprint match, or a reference is made that the defendant’s DNA was in the CODIS system. In general, when the connection of a defendant to a prior crime is merely speculative or vague, it does not amount to an impermissible reference to a prior crime. Furthermore, a blurt of this sort can usually be corrected by a limiting instruction under MAI-CR 4th 410.15.
References to Other Crimes on a Recording
The inclusion of other crimes in a confession or in a recorded conversation between the defendant and an undercover officer or informant does not guarantee the admission of those references at the trial for the charged crime. The prosecutor must show: (1) the other crimes or bad act evidence
would be admissible under one of the normal theories for admission of such misconduct or (2) the references to the uncharged act are an integral part of the confession [or recording and] the references are inextricably connected [and] . . . cannot be severed realistically, or (3) the whole confession [or conversation] would be unintelligible without the references to the uncharged misconduct.
Missouri cases generally uphold the trial court when the court finds that the references to other crimes are inextricably woven with the evidence of the charged crime. The prejudicial effect of not editing out references to other crimes is error, however, when the other crimes had nothing to do with the present case and could easily have been redacted from the confession.
When a defendant testifies in a criminal case, his credibility can be impeached with his prior convictions and guilty pleas. At the request of either party, the jury should be instructed that it may consider the priors when assessing the believability of the defendant as a witness. The new version of this instruction, approved by the Supreme Court of Missouri on October 15, 2108, and effective on January 1, 2019, is now located at MAI-CR 4th 410.10.
When evidence of other crimes or bad acts was admitted on the issue of motive, intent, absence of mistake or accident, or any other established exception, the jury should be instructed that it may consider this evidence for that specific purpose. The new version of this instruction is also part of MAI-CR 4th 410.10.
Finally, when evidence of the defendant’s other criminal acts was admitted to show his propensity to commit sex crimes against children less than age 18, the jury should be instructed that it can consider that evidence on his propensity to commit the crimes and to corroborate the testimony of the victim in the charged offense. The new version of this instruction is also part of the same jury instruction.
Joinder Statutes and Rules
The prosecutor is more likely to be allowed to introduce evidence of other crimes if those crimes are charged as separate counts in the same case. When so charged, the applicable statutes and rules say they “shall” be tried together unless the defense can make a particularized showing of substantial prejudice by doing so. Even when the offenses were not originally charged together in one case, consolidation of separate charged offenses is within the broad discretion of the trial court and is proper if the offenses could have been joined in one indictment or information. Prosecutors, defense lawyers, and trial judges should be familiar with the applicable statutes and rules pertaining to joinder of counts for charging and trial purposes.
Any litigator or judge involved in a case where evidence of other crimes or bad acts may be offered must remember the importance of weighing the probative value of the prior misconduct evidence against any unfair prejudicial effect. Familiarity with the general rule of inadmissibility and the well-recognized exceptions is essential. Error can be avoided by considering these issues in advance. A judge who carefully balances the probative value of other crimes evidence against its prejudicial effect and makes a good record will seldom be reversed and will have given the defendant a fair trial.
1 H. Morley Swingle served as prosecuting attorney for Cape Girardeau County for 25 years, and as an Assistant United States Attorney, and is currently an Assistant Circuit Attorney for the City of St. Louis. The viewpoints expressed in this article do not necessarily reflect those of the Office of the Circuit Attorney.
2 Jen Kirby, Cosby’s Defense Attorneys Used Personal Attacks to Try to Discredit Witnesses, Vox (April 13, 2018, 8:12 PM EDT), https://www.vox.com/2018/4/13/17234172/bill-cosby-trial-accusers-janice-dickinson-testimony.
4 Eric Levenson & Aaron Cooper, Bill Cosby Guilty on All Three Counts in Indecent Assault Trial, CNN (April 26, 2018, 11:53 PM ET), https://www.cnn.com/2018/04/26/us/bill-cosby-trial/index.html
6 State v. Willliams, 548 S.W.3d 275, 281 (Mo. banc 2018).
7 State v. Prince, 534 S.W.3d 813, 818 (Mo banc 2017).
8 State v. Skillicorn, 944 S.W.2d 877, 887 (Mo. banc 1997), overruled by Joy v. Morrison, 944 S.W.2d 877 (Mo. banc 2008).
9 State v. Prince, 534 S.W.3d 813, 817 (Mo. banc 2017).
10 Id. at 818.
11 State v. Anderson, 76 S.W.3d 275, 277 (Mo. banc 2002).
12 Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 8:03 (Thomson Reuters 1999). See also State v. Williams, 548 S.W.3d 275 (Mo. banc 2018).
13 State v. Blackman, 875 S.W.2d 122, 139 (Mo. App. E.D. 1994).
14 State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001).
15 State v. Smotherton, 993 S.W.2d 525, 528 (Mo. App. S.D. 1999); State v. Jacobs, 939 S.W.2d 7, 10 (Mo. App. W.D. 1997); State v. Wright, 30 S.W.3d 906, 913 (Mo. App. E.D. 2000).
16 State v. Wallace, 943 S.W.2d 721, 724-25 (Mo. App. W.D. 1997).
17 State v. Allen, 274 S.W.3d 514, 522-23 (Mo. App. W.D. 2008).
18 State v. Bommarito, 856 S.W.2d 680, 683 (Mo. App. E.D. 1993).
19 State v. Shaw, 847 S.W.2d 768, 778 (Mo. banc 1993).
20 State v. Frentzel, 717 S.W.2d 862, 867 (Mo. App. S.D. 1996).
21 State v. Olivares, 868 S.W.2d 122, 128 (Mo. App. W.D. 1993).
22 State v. Dowell, 25 S.W.3d 594, 603 (Mo. App. W.D. 2000).
23 State v. Parker, 988 S.W.2d 93, 96 (Mo. App. S.D. 1999).
24 State v. White, 329 S.W.3d 710, 713 (Mo. App. S.D. 2010); State v. Danikas, 11 S.W.3d 782, 790 (Mo. App. W.D. 1999); State v. Martinelli, 972 S.W.2d 424, 436 (Mo. App. E.D. 1998).
25 State v. Candela, 929 S.W.2d 852, 871 (Mo. App. E.D. 1996); State v. Letterman, 603 S.W.2d 951, 956 (Mo. App. S.D. 1980).
26 Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 5:11 (Thomson Reuters 1999).
27 121 S.W.3d 571 (Mo. App. S.D. 2003).
28 Id. at 574.
29 State v. Kerr, 531 S.W.2d 536, 542 (Mo. App. W.D. 1975).
30 State v. Sladek, 835 S.W.2d 308, 312-13 (Mo. banc 1992).
31 State v. Burgess, 780 S.W.2d 688, 691 (Mo. App. S.D. 1989).
32 State v. Vorhees, 248 S.W.3d 585, 588 (Mo. banc 2008), citing Jones v. State, 460 So. 2d 1384 (Ala. Crim. App. 1984). Vorhees was superseded by constitutional amendment as stated in State v. Williams, 548 S.W.3d 275 (Mo. banc 2018).
33 Jones v. State, 460 So.2d 1384, 1389 (Ala. Crim. App. 1984).
34 State v. Naylor, 510 S.W.3d 855, 863 (Mo. banc 2017).
35 State v. Davis, 211 S.W.3d 86, 89 (Mo. banc 2006).
36 968 S.W.2d 100 (Mo. banc 1998).
37 944 S.W.2d 877 (Mo. banc 1997), overruled by Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008).
38 Morrow, 968 S.W.2d at 107.
40 Skillicorn, 944 S.W.2d at 887.
41 State v. Primm, 347 S.W.3d 66, 71 (Mo. banc 2011).
42 State v. Taylor, 166 S.W.3d 599, 606 (Mo. App. S.D. 2005)
43 State v. Skillicorn, 944 S.W.2d 877, 886-87, 891 (Mo. banc 1997); Justin M. Dean, Missouri’s Law on Admissibility of Other Crimes Evidence: Increasing Inclusivity?, 64 Mo. L. Rev. 187, 201 (1999).
44 State v. Prince, 534 S.W.3d 813, 817 (Mo. banc 2017).
45 Id. at 818.
46 State v. Burns, 978 S.W.2d 759, 760 (Mo. banc 1998); see also State v. Naylor, 510 S.W.3d 855, 862 (Mo. banc 2017).
47 Mo. Const. art. I, § 18(c).
48 Section 565.079, RSMo 2018; see Robert H. Dierker, Missouri Criminal Practice Handbook, § 24:2 (2018).
49 Section 569.080.3, RSMo 2018.
50 Mo. Const. art. I, §18(c).
51 State ex rel. Tipler v. Gardner, 506 S.W.3d 922, 924 (Mo. banc 2017).
52 State v. Burns, 978 S.W.2d 759 (Mo. banc 1998).
53 State v. Ellison, 239 S.W.3d 603 (Mo. banc 2007), superseded by constitutional amendment as stated in State v. Williams, 548 S.W.3d 275 (Mo. banc 2018).
54 Missouri Secretary of State, Election Results, November 4, 2014, Constitutional Amendment 2, https://enrarchives.sos.mo.gov/enrnet/default.aspx?eid=750003143, (last visited Feb. 1, 2019).
55 State v. Williams, 548 S.W.3d 275 (Mo. banc 2018).
56 Id. In Williams, the Supreme Court indicated that earlier cases, such as State v. Rucker, 512 S.W.3d 63 (Mo. App. E.D. 2017), suggesting that after the constitutional amendment no balancing test is required, are not to be followed on that issue.
57 Id. at 288.
58 Id. at 289.
59 Id. at 290.
60 534 S.W.3d 813 (Mo. banc 2017).
61 State v. Peirano, 540 S.W.3d 523 (Mo. App. S.D. 2018); State v. Edwards, 537 S.W.3d 848 (Mo. App. E.D. 2017); State v. Jones, 546 S.W.3d 1 (Mo. App. E.D. 2017); State v. Matson, 526 S.W.3d 156 (Mo. App. W.D. 2017); State v. Thigpen, 548 S.W.3d 302 (Mo. App. E.D. 2017); State v. Hood, 521 S.W.3d 680 (Mo. App. S.D. 2017); State v. Rucker, 512 S.W.3d 63 (Mo. App. E.D. 2017), abrogated by State v. Williams,548 S.W.3d 275 (Mo. banc 2018).
62 849 S.W.2d 10, 17 (Mo. banc 1993).
63 849 S.W.2d 10 (Mo. banc 1993), abrogated by State v. Williams,548 S.W.3d 275 (Mo. banc 2018).
64 State v. Vorhees, 248 S.W.3d 585, 590 (Mo. banc 2008), superseded by constitutional amendment as stated in State v. Williams, 548 S.W.3d 275 (Mo. banc 2018).
65 State v. Sprous, 639 S.W.2d 576, 578 (Mo. banc 1982); State v. Hughes, 596 S.W.2d 723, 728-29 (Mo. banc 1980).
66 State v. Meeks, 659 S.W.2d 306, 307 (Mo. App. E.D. 1983); State v. Thompson, 723 S.W.2d 76, 85-88 (Mo. App. S.D. 1987).
67 State v. Scott, 687 S.W.2d 592, 593 (Mo. App. E.D. 1985).
68 State v. Cannon, 215 SW.3d 295, 301 (Mo. App. W.D. 2007); State v. Ford, 623 S.W.2d 574 (Mo. App. E.D. 1981).
69 Cannon, 215 S.W.3d at 301
70 United States v. Dittrich, 100 F.3d 84, 86 (8th Cir. 1996).
71 Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 3:04 (Thomson Reuters 1999).
72 State v. Hoyel, 534 S.W.2d 266, 269 (Mo. App. E.D. 1975).
73 State v. Turner, 633 S.W.2d 421, 425 (Mo. App. W.D. 1982).
74 State v. Lockett, 639 S.W.2d 132, 136 (Mo. App. W.D. 1982).
75 United States v. Stowell, 947 F.2d 1251 (5th Cir. 1991).
76 Gurley v. State, 431 S.W.3d 511, 517 (Mo. App. E.D. 2014); State v. Rodgers, 3 S.W.3d 818, 822 (Mo. App. W.D. 1999); State v. Tivis, 933 S.W.2d 843, 846 (Mo. App. W.D. 1996).
77 State v. Smith, 884 S.W.2d 104, 106 (Mo. App. E.D. 1994). But overzealous use of evidence that the defendant just got out of jail can be reversible error. State v. Butler, 984 S.W.2d 860, 863-64 (Mo. App. W.D. 1998).
78 State v. Mackin, 927 S.W.2d 553, 555-56 (Mo. App. S.D. 1996).
79 State v. Carr, 50 S.W.3d 848, 853-55 (Mo. App. W.D. 2001).
80 State v. McMilian, 295 S.W.3d 537, 539-40 (Mo. App. W.D. 2009).
81 Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 6:25 (Thomson Reuters 1999).
82 State v. Sweeney, 701 S.W.2d 420, 424-25 (Mo. banc 1985); State v. Thompson, 489 S.W.3d 312, 324-25 (Mo. App. W.D. 2016); State v. Destefano, 211 S.W.3d 173, 177-80 (Mo. App. S.D. 2007); State v. Luton, 795 S.W.2d 468, 478 (Mo. App. E.D. 1990); State v. Brown, 584 S.W.2d 413, 415 (Mo. App. E.D. 1979); State v. Powell, 595 S.W.2d 13, 15-16 (Mo. App. E.D. 1979).
83 State v. Roberts, 948 S.W.2d 577, 590-92 (Mo. banc 1997).
84 See Rules 23.05 and 24.07, § 545.140, RSMo 2018 and § 545.880, RSMo 2018.
85 State v. Anderson, 785 S.W.2d 299, 305 (Mo. App. S.D. 1990).