State v. Thomas

SMART, Judge,

concurring.

I concur in the result because I believe the similarities of Thomas’ alleged actions in the two incidents were not sufficiently compelling as a “signature” of the defendant’s modus operandi to warrant admission, especially in the face of the obvious serious potential for prejudice. I write separately simply to state my view that the law requires only that the evidence of other wrongdoing, taken as a whole, be sufficiently similar as to be distinctive or unusual. It is not necessary that any single act of the defendant, standing alone, be unusual or bizarre.

Jurors tend to require corroboration in sexual assault cases.1 Sexual assault is usually perpetrated in private. If the victim is not beaten, and there is no evidence that a weapon was used, jurors will look for corroboration in the form of medical testimony. If there is no medical corroboration, the victim is very likely to be disbelieved. Consequently, there may be a high degree of probative value to logically relevant, material evidence which supports the victim’s testimony of the commission of a sexual assault.

Defense attorneys are aware that if the only issue is consent, they will often be able to keep out of evidence any testimony as to other, even very similar, criminal acts of the defendant. If the defendant’s testimony as to consent sounds reasonably plausible, the victim’s testimony often will be disbelieved. See Comment, The Admissibility of Other-Crimes Evidence In Acquaintance-Rape Prosecutions, 17 So.Ill. L.J. 341 (1993). If, however, the evidence of the defendant’s previous distinctively similar actions are received in evidence as reflecting on the probability of the events occurring as described by the victim, the victim’s testimony will logically and properly be regarded with less skepticism. It is unjust to the victim, as well as to society, to require the victim to climb a mountain of skepticism when there is available evidence of substantial probative value which reveals the distinctive modus operandi of the accused.

The trial judge is in the best position to evaluate the potential prejudice to the defendant, and to weigh the legitimate probative value against the potential for prejudice. The court should guard against allowing evidence to be admitted simply for the inference that the defendant is a person of bad character and therefore committed the crime, or that he has a general propensity for sexual assault and therefore committed the crime. But the jurors should be permitted to evaluate the reasonable probability of the respective versions of the testimony in the light of evidence of distinctively similar criminal acts committed by the defendant.

In this case, Thomas’ alleged actions with T.C. were different from his alleged actions with T.P., most notably in that he never forced T.C. into sexual intercourse. When the telephone rang near T.C., Thomas allowed her to answer the telephone, although he could have kept her from answering. The evidence of his conduct with T.C. fails to amount to a signature modus operandi when compared to the acts charged in this case.

. It may be true that modus operandi evidence is a form of corroboration which, necessarily, reasons from the character or propensity of the accused to the commission of the act charged. State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993) (Robertson, C.J., concurring) and (Thomas, J., concurring). Nevertheless, it should be admitted. We usually exclude evidence of other criminal acts of the same general type, not because the evidence is logically irrelevant, but because we deem the risk of prejudice to outweigh the probative value. We allow such evidence only when there is a particular reason that the probative value outweighs the risk of prejudice. See State v. Sladek, 835 S.W.2d 308 (Mo. banc 1992) (Thomas, J., concurring).