State v. Thomas

SPINDEN, Judge.

A jury convicted Louis Thomas of rape, but it considered evidence that Thomas had made a sexual advance toward another woman in an incident not related to the alleged rape. Thomas alleges that the evidence so inflamed the jury's passions and prejudices that it prevented him from receiving a fair trial. We agree. We reverse his conviction and remand the case for a new trial.

The rape charge arose out of an incident on August 7, 1991, when Thomas allegedly forced sexual intercourse with T.P. at the University of Missouri-Columbia where Thomas and the woman were students. Thomas argues that the sexual encounter was consensual. On June 20, 1991, after having lunch with T.P., Thomas drove her to her apartment. She invited Thomas in to watch television when he agreed to connect it to the cable outlet. Inside the apartment, Thomas looked in each room, including the laundry room, where he switched the light on and off and closed the door. He asked whether anyone else was present in the apartment. While Thomas worked with the television, T.P. went upstairs to her bedroom. Thomas soon followed her upstairs and sat on the bed where T.P. laid. They talked a bit before Thomas left the room, saying he was returning to the university. T.P. immediately went to sleep. She awoke with Thomas on top of her. He told her that he was lonely, that he loved her and that he did not want her to be with her boyfriend who did not love her. He forced sexual intercourse with her after she resisted. He got up when she began crying and left the apartment.

To bolster T.P.’s accusations against Thomas, the state offered the corroborating testimony of another female student at the university, T.C., who related an earlier incident with Thomas at her apartment. She said that she knew Thomas and let him into her apartment. Inside, he looked into the bedrooms and switched the lights on and off. He returned to the living room and began hugging her and touching her all over her body. He told her that he always wanted to be with her but she was always with her boyfriend. She told him she did not “like him [that] way.” He forced her onto the couch and lay on top of her and began kissing her. She pushed him away with her knees. They fell to the floor where they sat briefly with Thomas holding her arm. The phone rang, and T.C. pulled away to answer it. She told the caller that Thomas was there and was doing “something she did not like.” Thomas left.

The trial court allowed T.C.’s testimony because it "had a legitimate tendency to directly establish the defendant’s guilt of the crime charged.” The court reasoned that the second incident “occurred near the time of the offense charged and was of such similar nature as to show a common scheme or plan and a unique and special modus operandi.”

The trial court should have excluded the testimony. “[Ejvidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). See also State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992). A jury should not convict a defendant merely because it infers that the defendant has a general propensity or proclivity to commit crime. State v. Brooks, 810 S.W.2d 627 (Mo.App.1991).

On the other hand, evidence of other, uncharged misdeeds is admissible to prove motive, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. If evidence of prior misconduct does not fit into one of these exceptions, it must not be admitted unless it is logically and legally relevant. Bernard, 849 S.W.2d at 13.

The state argues that the evidence fits within the common scheme or plan exception. To fit within this exception, the evidence must be “nearly identical to the charged crimes and so unusual and distinctive as to be a signature of the [defendant’s] modus operandi.” Id. at 19. The uncharged crime must be more than merely similar; it must be “so unusual and distinctive that the prior acts resemble the signature of the defendant’s involvement in the present crime.” Id.

The state emphasizes that both of Thomas’ victims were university students and Thomas’ friends, that Thomas did not use a weapon or threaten bodily harm in either incident, that he attacked both victims without warning, that he spoke of loneliness and of the victims’ boyfriends in both cases, and that in both cases he walked through the victims’ apartments flipping the lights on and off. These acts, even taken together, were not so unique and distinctive as to amount to Thomas’ “signature.” The actions noted are common, not unusual. Similarities between the incidents is not sufficient.

The state also argues that challenged evidence was admissible because it tended to show absence of mistake. The state asserts that the evidence demonstrated that Thomas was able to determine when his victims found his sexual advances undesirable. It argues that the jury could “draw upon the episode at [T.C.’s apartment] to infer that Thomas understood that T.P. was refusing his advance.” We disagree. Establishing that Thomas was aware that T.C. did not want his hugs and kisses has no relevance to whether Thomas knew that he did not have T.P.’s consent to engage in sexual intercourse.

We, therefore, reverse the trial court’s judgment. We remand the case to the trial court for a new trial with instruction that it exclude evidence concerning the uncharged incident with T.C.

FENNER, P.J., concurs. SMART, J., concurs in a separately-filed opinion.