Date: 08-26-2016

Case Style: State of Missouri vs. Jeremy R. Hobbs

Case Number: ED102667

Judge: Sherri B. Sullivan

Court: MISSOURI COURT OF APPEALS EASTERN DISTRICT

Plaintiff's Attorney:

Chris Koster

Defendant's Attorney:

Emmet D. Queener

Description: Victim was five years old at the time of the events at issue in this case and lived with his
father and L.H., to whom his father was engaged. Appellant was the cousin of L.H.’s sister, S.H.
On May 31, 2013, J.C. told S.H., his aunt, he had seen Appellant and Victim in bed together and
Appellant had his pants unzipped. S.H. told her husband, who told Victim’s father. Victim’s
father asked Victim about this, and Victim told his father Appellant touched his penis twice.
Victim’s father contacted the police. Upon being interviewed, Appellant admitted to Detective
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James Patton (Det. Patton) orally and in writing he had touched Victim’s penis. Appellant was
indicted, tried and convicted of one count of first-degree child molestation. Prior to trial,
Appellant filed a motion in limine prior to trial to exclude evidence he had been indicted on two
additional sexual abuse charges following the indictment in this case. The trial court granted the
motion, and during the guilt phase of his trial, no evidence of such was introduced.
However, during the sentencing phase of trial, Det. Patton testified about the current
charges pending against Appellant for child molestation and sexual exploitation of a minor. The
defense objected to the State presenting evidence of the new charges, which had not yet been
adjudicated. The State replied the incidents leading to the new charges occurred prior to the
charges in the instant case, and did not have to have been adjudicated to be admissible.
The trial court overruled Appellant’s objection, relying upon State v. Thurman, 272
S.W.3d 489 (Mo.App. E.D. 2008). Det. Patton was allowed to testify during the penalty phase
that during his continued investigation of Appellant after being apprised of the incidents leading
to the instant case, he developed information regarding another incident of child molestation and
discovered photographs which could constitute sexual exploitation of a minor. The State asked
the jurors to impose the maximum sentence of fifteen years.
Victim’s father also testified during the penalty phase as to how the crime had affected
his family and asked for the maximum sentence, fifteen years. L.H., Victim’s stepmother,
testified how Appellant had violated her trust and betrayed her. Appellant’s father asked for
leniency because this crime was a one-time event.
At the conclusion of the penalty phase, the jury recommended Appellant be sentenced to
ten years in prison, which the trial court imposed. This appeal follows.
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Point on Appeal In his point on appeal, Appellant claims the trial court abused its discretion in allowing
the State to introduce evidence of additional charges filed against him in the punishment phase of
the trial, because this violated his rights to due process of law and a fair trial guaranteed by the
Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the
Missouri Constitution, in that the evidence was not legally relevant to the issue of punishment
because the State failed to prove the existence of these additional charges by a preponderance of
the evidence.
Standard of Review As a general rule, the trial court has discretion during the punishment phase of trial to
admit whatever evidence it deems helpful to the jury in assessing punishment. State v. Johns, 34
S.W.3d 93, 112 (Mo.banc 2000). When a challenge to the trial court’s admission of evidence
during the penalty phase is preserved for appeal, we review the trial court’s ruling for an abuse of
discretion. State v. Voss, 2016 WL 145727 *9 (Mo.App. E.D. 2016). An abuse of discretion
occurs if the trial court’s ruling as to the admission of evidence is clearly against the logic of the
circumstances and is so unreasonable as to indicate a lack of careful consideration. Id.
However, even if we find an abuse of discretion, we will not reverse unless we also find that the
trial court’s error resulted in prejudice to the defendant. Id.
Discussion During the penalty phase of a trial, a wide range of evidence supporting or mitigating
punishment is admissible, and the trial court has broad discretion to admit any evidence it
believes may be helpful to the jury in assessing punishment. State v. Bowman, 337 S.W.3d 679,
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691 (Mo.banc 2011); Section 557.036.3.1 Such evidence may include, “within the discretion of
the court, evidence concerning the impact of the crime upon the victim, the victim's family and
others, the nature and circumstances of the offense, and the history and character of the
defendant.” Section 557.036.3; State v. Fassero, 256 S.W.3d 109, 119 (Mo.banc 2008).
Although evidence pertaining to criminal conduct of the defendant not resulting in
conviction is relevant to the defendant’s history and character, such evidence is admissible in a
penalty phase only if the State proves, by a preponderance of the evidence, that the defendant
engaged in the conduct alleged. Fassero, 256 S.W.3d at 119. For example, testimony from a
victim of a defendant’s prior unadjudicated criminal conduct regarding a defendant’s actions at
the time of the alleged offense satisfies the preponderance of the evidence standard and is
admissible as history and character evidence pursuant to Section 557.036.3. State v. McArthur,
343 S.W.3d 726, 727-28 (Mo.App. E.D. 2011). A victim’s testimony regarding his or her
firsthand knowledge of a defendant’s prior unadjudicated criminal conduct at the time of the
alleged offense satisfies the preponderance of the evidence standard and is admissible under
section 557.036.3. Id. Our Court has also held a defendant’s admission that he committed prior
unadjudicated criminal conduct satisfies the preponderance of the evidence standard and is
admissible as history and character evidence pursuant to Section 557.036.3. State v. Hadley, 357
S.W.3d 267, 273 (Mo.App. E.D. 2012). However, here we have no witness testimony or
admission by Appellant. Rather, the State merely referred to additional charges against
Appellant without any supporting evidence:
“It’s conduct that was building. All right. I’m not going to belabor the point. You
understand he’s been charged with two other charges, two other cases pending, both involving
1 All statutory references are to RSMo 2012, unless otherwise indicated.
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young boys. It’s a pattern of behavior. It’s a pattern of conduct. It’s a course of conduct.
They’re not accidents. They’re not isolated events.”
In Fassero, the court said introducing indictments was not enough to prove that the
defendant committed the underlying acts by a preponderance of the evidence. Fassero, 256
S.W.3d at 119. Although the State may present evidence of criminal conduct for which the
defendant was never convicted, the penalty phase jury may only consider such evidence if
proven by a preponderance of the evidence. Id., citing State v. Clark, 197 S.W.3d 598, 601
(Mo.banc 2006) (citing United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d
554 (1997)).
During the penalty phase of Fassero’s trial, the state could have introduced evidence that Fassero committed the acts of criminal sexual abuse described in the indictment to prove that Fassero had a history of molesting children. Section 557.036.3; State v. Winfield, 5 S.W.3d 505, 515; State v. Ferguson, 20 S.W.3d 485, 500 (Mo.banc 2000); State v. Clark, 197 S.W.3d 598, 601 (Mo.banc 2006). If the state had proven by a preponderance of the evidence that Fassero committed the underlying acts of sexual abuse, the jury could have considered these acts in assessing Fassero’s punishment. Id. …The state did not present evidence that Fassero had committed the acts of sexual abuse charged in the Illinois indictment, however. The state presented only the indictment itself.
Fassero, 256 S.W.3d at 119.
The same is true in the instant case. The State introduced evidence in the penalty
phase that there are two pending unadjudicated indictments against Appellant without
any additional supporting evidence he had in fact committed the crimes charged. This is
not permissible under Fassero. While the indictments are relevant to prove Appellant
was indicted on charges of criminal sexual abuse, they are not relevant to prove that he
engaged in the conduct alleged in the indictments. Fassero, 256 S.W.3d at 119. The
indictments were relevant only to prove Appellant had been charged with crimes, not that
Appellant had actually engaged in any criminal conduct. Id. As such, unlike a
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defendant’s admission he committed the conduct, Hadley, 357 S.W.3d at 273, or a
witness’s testimony the defendant committed the conduct, McArthur, 343 S.W.3d at 727
28, the plain existence of indictments are not ‘history and character’ evidence authorized
by Section 557.036.3 and are, therefore, inadmissible as history and character evidence
under Section 557.036.3, because the indictments by themselves do not amount to a
preponderance of the evidence that the defendant engaged in the conduct alleged.
Fassero, 256 S.W.3d at 119.
Further, we cannot definitively determine Appellant was not prejudiced by the
improper admission of this irrelevant evidence in the punishment phase because the jury
recommended a sentence of ten years, which is at the midpoint of a possible five to
fifteen year sentence. His father testified asking for leniency in punishment and Victim’s
relatives testified asking for severity in sentence. It is impossible to tell for certain what
impact Det. Patton’s testimony about the two indictments and the State’s argument that
these pending charges show an escalating pattern of behavior of sexual abuse against
young boys had on the jury. For these reasons, Appellant’s point on appeal is granted.

Outcome:

The trial court’s judgment of conviction is affirmed, the sentence is reversed, and this cause is remanded for a new penalty phase in accordance with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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