State v. Magouirk

890 S.W.2d 17 (1994)

STATE of Missouri, Plaintiff-Respondent,
v.
William MAGOUIRK, Defendant-Appellant.

No. 19537.

Missouri Court of Appeals, Southern District, Division Two.

December 19, 1994.

Craig A. Johnston, Office of the State Public Defender, Columbia, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Kocot, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PREWITT, Judge.

Following nonjury trial defendant was convicted of sodomy. § 566.060.3, RSMo Supp. 1992. A request for probation was denied and defendant was sentenced to 5 years' imprisonment. Defendant appeals, presenting two points relied on.

Relying primarily on State v. Bernard, 849 S.W.2d 10, (Mo. banc 1993), and State v. Phillips, 854 S.W.2d 803 (Mo.App. 1993), defendant contends that the trial court erred in allowing testimony concerning uncharged acts of sexual misconduct committed by defendant upon the victim. Bernard did not involve prior acts against the victim as is the case here. Numerous cases hold that prior sexual conduct by a defendant toward the victim is admissible as it tends to establish a motive, that is satisfaction of defendant's sexual desire for the victim. State v. Graham, 641 S.W.2d 102, 105 (Mo. banc 1982); State v. Barnard, 820 S.W.2d 674, 678 (Mo.App.1991); State v. Douglas, 797 S.W.2d 532, 533 (Mo.App.1990); State v. Gunter, 715 S.W.2d 576, 578 (Mo.App.1986).

Phillips involved testimony from the victim and another witness about uncharged conduct. Phillips discusses Bernard at length. Defendant suggests Phillips necessitates a reversal in this case. This would require us to read Phillips as holding that the Bernard "signature modus-operandi/corroboration" exception is now the exclusive theory under which evidence of uncharged conduct may be admissible.

We do not read Phillips that way. The requirement in Bernard that uncharged conduct be so "unusual and distinctive" and so nearly "identical" to the charged conduct as to constitute defendant's "signature" addresses the traditional identity exception. Under similar circumstances, Bernard allows testimony of another victim to corroborate the testimony of the victim. Phillips does not address the traditional exception for motive, and it is not clear that the state raised that theory. Furthermore, we do not read Bernard as altering the law regarding the motive exception. Point one is denied.

Defendant asserts in his remaining point that the trial court erred in refusing to consider probation. The trial court's decision to grant or deny probation is reversible only on a showing of extreme abuse of discretion. State v. Priesmeyer, 719 S.W.2d 873, 876 (Mo.App.1986); State v. Keller, 685 S.W.2d 605, 606 (Mo.App.1985). No abuse of that discretion is present here. Point two is denied.

The judgment is affirmed.

GARRISON, P.J., and PARRISH, J., concur.