State v. Jones

546 S.W.3d 1

STATE of Missouri, Respondent,

v.Gregory Bryant JONES, Appellant.

No. ED 104796

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: September 5, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied October 23, 2017

Application for Transfer Denied May 22, 2018

Richard R. Lozano, 231 Bemiston, Suite 800, Clayton, MO 63105, for appellant.

Joshua D. Hawley, Richard A. Starnes, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Gregory Bryant Jones ("Jones") appeals from the judgment of the trial court, entered after a jury convicted him on two counts of first-degree statutory sodomy. On appeal, Jones raises three points. First, Jones contends that the trial court erred in admitting Jones’s prior convictions as propensity evidence without first balancing whether the probative value of such evidence was outweighed by the danger of unfair prejudice. Second, Jones argues that the trial court’s application of Missouri Constitution Article I, Section 18(c) (" Article I, Section 18(c)") to his trial violated the constitutional prohibition on ex post facto laws. Third, Jones asserts that the trial court improperly limited his cross-examination of the State’s witnesses.

Because Article I, Section 18(c) does not require the trial court to conduct any balancing test of probative value versus prejudice, and because Article I, Section 18(c) sets forth an evidentiary procedural rule that was prospectively applied to Jones’s trial, the trial court did not err in admitting Jones’s prior convictions as propensity evidence. Additionally, Jones waived his claim of trial-court error regarding the limits placed on his cross-examination of the State’s witnesses, and we decline plain-error review. We affirm.

Factual and Procedural History

The State charged Jones with two counts of first-degree statutory sodomy for improperly touching Victim, his step-granddaughter, sometime between September 2001 and 2003. Jones was convicted in 1968 of forcible rape and in 1975 of attempted rape. The State sought to submit Jones’s prior convictions as propensity evidence under Article I, Section 18(c). Jones moved to exclude his prior convictions from evidence, arguing that the probative value from the convictions was substantially outweighed by the danger of unfair prejudice. Specifically, Jones claimed that his prior convictions lacked any probative value because they were remote in time and dissimilar to statutory sodomy. Jones also maintained that applying Article I, Section 18(c) to his trial violated the constitutional prohibition on ex post facto laws because it was enacted after he allegedly sodomized Victim. The trial court denied Jones’s motion, finding that Article I, Section 18(c) was procedural in nature and did not contravene the constitutional prohibition on ex post facto laws. The trial court did not, however, determine whether the probative value of Jones’s prior convictions was substantially outweighed by the danger of unfair prejudice. Instead the trial court found that Jones’s prior convictions "will be admitted for purposes of propensity, and that’s pursuant to the Missouri Constitution." The case proceeded to a jury trial.

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. Sometime between 2001 and 2003, Victim’s family moved into Jones’s residence. Jones was Victim’s step-grandfather. Victim, at the time of the charged conduct, was around ten years old. While living with Jones, Victim experienced two incidents of sexual abuse.

The first incident occurred when Victim was walking up the stairs to her bedroom. Jones stopped Victim, informing her that he had yet to receive a goodnight kiss. Jones kissed Victim, inserting his tongue into her mouth. Then, Jones grabbed Victim’s hand and placed it directly on his penis, which was exposed through his unbuttoned pajama pants. Victim described the experience as "kind of scary" and that she "was really kind of lost."

The second incident occurred in Victim’s bedroom after she had finished showering. Victim, wrapped in a towel, entered her bedroom. Jones followed her into the bedroom, blocking the door. Jones instructed Victim that he needed to check her body. Placing Victim on the bed, Jones spread Victim’s legs, moved her towel, and exposed her vagina. Jones then placed his finger inside Victim’s vagina, moving it in and out for a few minutes. Describing the experience, Victim recalled that it was "really uncomfortable" and that she "didn't know what to think of it. I just had a feeling that something wasn't—something wasn't right but—that’s my grandpa."

Victim did not report the abuse when it occurred. Shortly thereafter, Victim’s family moved out of Jones’s residence. After moving, Victim suppressed the sexual abuse from her memory.

Years later Victim temporarily moved into Jones’s residence for a week, Afterwards, Victim claimed that she began experiencing horrific flashbacks and nightmares of the abusive events. Eventually, these flashbacks and nightmares caused Victim to tell her Mother and Stepfather about the two instances of abuse. Victim’s parents alerted the authorities, and Jones was taken into custody.

At trial, the State read into evidence Jones’s prior convictions for rape and attempted rape. Jones renewed his previous objections, but was overruled. Specifically, the State read the following to the jury: "[O]n December 18, 1968, [Jones] was found guilty of the felony of forcible rape in the Circuit Court of the City of St. Louis[.] ... And on May 20, 1975, [Jones] was found guilty of the felony of attended [sic] rape in the Circuit Court of the City of St. Louis[.]"

During trial, Jones cross-examined Victim about her claims that Stepfather physically abused her and questioned Stepfather about his relationship with Jones. However, the trial court limited Jones’s cross-examination of Victim by disallowing use of certain text messages sent by Victim and by precluding Victim from commenting on the relationship between Stepfather and Jones. Further, the trial court limited Jones’s cross-examination of Stepfather by barring questions about Stepfather’s prior conviction for assault and his purported apology to Victim for physically abusing her.

The jury found Jones guilty on both counts of first-degree statutory sodomy. Jones moved for a new trial, claiming that the trial court erred in admitting evidence of his prior crimes and in limiting his cross-examination of Victim and Stepfather, The trial court denied Jones’s motion. After finding that Jones was a persistent sexual offender, the trial court sentenced Jones to thirty years, without the possibility of parole, on each count. The trial court ordered the counts to run concurrently. This appeal follows.

Points on Appeal

Jones raises three points on appeal. Jones first contends that the trial court erred in admitting Jones’s prior convictions as propensity evidence without conducting the balancing test required by Article I, Section 18(c). Jones proffers that a properly conducted balancing test would reveal that the probative value of his prior convictions was far exceeded by the danger of unfair prejudice. In his second point, Jones maintains that the application of Article I, Section 18(c) to his trial violated the state and federal constitutional bans on ex post facto laws. Finally, Jones argues that the trial court improperly limited his cross-examination into the biases of the State’s witnesses.

Discussion

I. Point One—No Balancing Test Required Under Article I, Section 18(c)

A. Standard of Review

The trial court has broad discretion in determining whether to admit or exclude evidence at trial, and appellate courts review such evidentiary rulings for an abuse of discretion, State v. McBenge, 507 S.W.3d 94, 112 (Mo. App. E.D. 2016). "A trial court abuses its discretion when its ruling ‘is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.’ " Id. (quoting State v. Hood, 451 S.W.3d 758, 765 (Mo. App. E.D. 2014) ). However, Jones’s point necessitates an interpretation and application of Missouri rules of evidence, as derived from statutes, the common law, and the Constitution. State v. Walkup, 220 S.W.3d 748, 757 (Mo. banc 2007). The interpretation and application of rules of evidence are questions of law that this court reviews de novo. See State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc 2009).

B. No Balancing Test Required

Jones initially argues that the trial court erred by not conducting an express balancing test before admitting Jones’s prior convictions as propensity evidence under Article I, Section 18(c). Jones reasons that a properly conducted balancing test would reveal that the probative value of his prior convictions was substantially outweighed by the danger of unfair prejudice, thereby precluding the admission of his prior convictions.

In 2014, Missouri voters amended the Missouri constitution to enact a new rule of evidence in criminal cases. State ex rel. Tipler v. Gardner, 506 S.W.3d 922, 924 (Mo. banc 2017) (referencing Mo. Const. art. I, sec. 18(c) ); State v. Rucker, 512 S.W.3d 63, 67 (Mo. App. E.D. 2017). This amendment, Article I, Section 18(c), effective on December 4, 2014, provided:

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.

Mo. Const. art. I, sec. 18(c). This amendment expressly allows the...