dissenting.
I.
I believe that the dissenting judge in the Court of Appeals misused the certification process (Mo. Const., art. V, § 10), because there is no conflict between the cases he cites1 and the opinion of the Court of Appeals. In each of the three cases, a conviction was reversed because of prosecutorial misconduct in seeking to bring the defendant’s prior behavior to the attention of the jury. Those cases cannot be in conflict with a decision which reaches the same result. They are limited to their particular facts. Anything beyond is dicta. The presence of possibly inconsistent dicta does not justify the certification of a conflict. There is a conflict only if the ratio deciden-di of the earlier case requires a different decision in the certified case. A judge of the Court of Appeals should not certify a case to us as conflicting simply because he differs with his colleagues about the result.
II.
I concede this Court’s undoubted power to take a certified case as on original appeal, even though no genuine conflict is present. (Mo. Const., art. V, § 10).
The principal opinion concedes that the prosecutor was guilty of misconduct in insinuating to the jury that the defendant has been guilty of prior sexual abuse of children. The attempt was willful and brazen. Similar misconduct has been consistently condemned.2
The showing of prior sexual deviation is highly prejudicial to a person held to answer sexual charges. The trial judge’s sustaining of the objection and the cautionary instruction are of dubious value in erasing the suggestion from the jury’s mind. Judges should proceed against flagrant prosecutorial misconduct. If the trial court is unwilling to act, appellate courts should. There is a time to defer to the trial judge, and a time to take action in order to instill a feeling of confidence in trial procedures.
The severity of the sentence (consecutive 15 year terms) is a matter to consider. Juries often are repelled by cases involving pedophilia, especially where there is intimation of persistent offending. Even if the evidence of guilt is overwhelming, we must consider the possibility that the jury enhanced the sentence because of a feeling that the defendant was a persistent offender.
At the January Session we retransferred the case of State v. Hombeck, 702 S.W.2d 90 (Mo.App.1986), in which the prosecutor deliberately sought to suggest to the jury that defendant’s attorney had participated with the defendant in a conspiracy to obstruct justice by preventing a witness from testifying. We left in place a Court of Appeals opinion directing a new trial because of prosecutorial misconduct. In Hombeck the trial judge overruled the defendant’s objection, whereas here the objection was sustained, but this difference is not enough to justify a different result.
The judgment of conviction should be reversed and the case remanded for retrial.
. State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979); State v. Pierce, 595 S.W.2d 748 (Mo.App.1980); State v. Cleveland, 583 S.W.2d 263 (Mo.App.1979).
. See, e.g., State v. Siems, 535 S.W.2d 261 (Mo. App.1976) (sodomy case reversed and remanded for a new trial after the prosecutor asked witnesses about rumors that the defendant had engaged in such immoral conduct as wife-swapping), and the cases cited in Note 1, supra.