scheme or plan exception in Missouri

2006Nevertheless, on remand, we call attention to Bernard, 849 S.W.2d at 13 , in which the Missouri Supreme Court explained that “[i]t is in the application of the common scheme or plan exception that courts most often have admitted evidence of the *228 defendant’s prior sexual abuse of minors other than the victim.” In assessing the logical relevance of such evidence under that exception the Court set out the following: Because of the secretive nature of the crime in most cases involving sexual abuse or molestation of a child by an adult, the only eyewitnesses to the crime are the defendant and t

2005“The court found the evidence admissible under the common scheme or plan exception in part because the defendant exercised control and custody of the boys and in part because the various acts of sexual misconduct, both charged and uncharged, occurred during an approximately one-hour period.” Id. (emphasis added).

1993The La-chterman court held that “[e]vidence of repeated acts of sexual abuse of children demonstrates, per se, a propensity for sexual aberration and a depraved sexual instinct and should be recognized as an additional distinct exception to the rule against the admission of evidence of uncharged crimes.” Id. at 768 ; see also State v. Taylor, 735 S.W.2d 412, 417 (Mo.App.1987).

1993The Lachterman court held that "[e]vidence of repeated acts of sexual abuse of children demonstrates, per se, a propensity for sexual aberration and a depraved sexual instinct and should be recognized as an additional distinct exception to the rule against the admission of evidence of uncharged crimes." Id. at 768 ; see also State v. Taylor, 735 S.W.2d 412, 417 (Mo.App.1987).

1993Like the Lachterman court, the Supreme Court in Bernard criticized the growing trend of admitting evidence of prior sexual misconduct with persons other than the victim under the common scheme or plan exception typified by cases such as State v. Koster, 684 S.W.2d 488 (Mo.App.1984).

1993The court remarked that State v. Koster, 684 S.W.2d 488 (Mo.App.1984), expanded the common scheme or plan exception beyond that traditionally allowed.

1991State v. Erickson, 793 S.W.2d 377 (Mo.App.1990); State v. Dee, 752 S.W.2d 942 (Mo.App.1988); State v. Muthofer, 731 S.W.2d 504 (Mo.App.1987); State v. Smith, supra, 694 S.W.2d 901 ; State v. Dalton, 587 S.W.2d 644 (Mo.App.1979).

1991State v. Erickson, 793 S.W.2d 377 (Mo.App.1990); State v. Dee, 752 S.W.2d 942 (Mo.App.1988); State v. Muthofer, 731 S.W.2d 504 (Mo.App.1987); State v. Smith, supra, 694 S.W.2d 901 ; State v. Dalton, 587 S.W.2d 644 (Mo.App.1979).

1991State v. Erickson, 793 S.W.2d 377 (Mo.App.1990); State v. Dee, 752 S.W.2d 942 (Mo.App.1988); State v. Muthofer, 731 S.W.2d 504 (Mo.App.1987); State v. Smith, supra, 694 S.W.2d 901 ; State v. Dalton, 587 S.W.2d 644 (Mo.App.1979).

1991State v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991); State v. Erickson, 793 S.W.2d 377, 383 (Mo.App.1990); State v. Taylor, 735 S.W.2d 412, 417-18 (Mo.App.1987).

1990In State v. Lue, 598 S.W.2d 133, 137 (Mo.banc 1980), the court restated the traditional bounds of the exception: “Among the exceptions to this rule [denying use of evidence of other crimes by the accused] is that evidence of other crimes is competent when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other.” Crimes are not so related if not so blended or connected that the investigation of one involves an inquiry into the other.

1985In State v. Lue, 598 S.W.2d 133 (Mo. banc 1980) the Supreme Court combined the common scheme or plan exception with the complete and coherent picture exception.

1997In State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994), this Court held that the common scheme or plan exception applies when another crime is “interconnected to and ■ nearly contemporaneous with a murder ... and set the context for that offense.” Said better, the common scheme or plan exception most often applies when the evidence tends to show that the uncharged misconduct proceeds from a single plan formed in advance of both crimes.

1997State v. Shaw, 915 S.W.2d 775, 783 (Mo.App.1996).

1995The common scheme or plan exception allows evidence of other crimes when that evidence “tend[s] to establish ... a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other ...” State v. King, 588 S.W.2d 147, 150 (Mo.App.1979).

1995An exception closely linked to the common scheme or plan exception 1 allows other crimes evidence when it is so “linked in point of time and circumstance with the crime charged that one cannot fully be shown without proving the other.” State v. Weatherspoon, 728 S.W.2d 267, 272-73 (Mo.App.1987).

1995An exception closely linked to the common scheme or plan exception 1 allows other crimes evidence when it is so “linked in point of time and circumstance with the crime charged that one cannot fully be shown without proving the other.” State v. Weatherspoon, 728 S.W.2d 267, 272-73 (Mo.App.1987).

1995See State v. Piacke, 733 S.W.2d 847, 850 (Mo.App.E.D.1987).

1993As the court of appeals noted in State v. Brooks, 810 S.W.2d 627 (Mo.App.1991), the result has been that “the common scheme or plan exception [is] being conflated or mixed with the identity exception; the definitional lines separating these two exceptions [has] become blurred; and the trial court admits evidence of other crimes without a clear rationale for doing so.” Id. at 633 .

1993As the court of appeals noted in State v. Brooks, 810 S.W.2d 627 (Mo.App.1991), the result has been that “the common scheme or plan exception [is] being conflated or mixed with the identity exception; the definitional lines separating these two exceptions [has] become blurred; and the trial court admits evidence of other crimes without a clear rationale for doing so.” Id. at 633 .

1992State v. Barnard, 820 S.W.2d 674, 678 (Mo.App.1991).

1991State v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991); State v. Erickson, 793 S.W.2d 377, 383 (Mo.App.1990); State v. Taylor, 735 S.W.2d 412, 417-18 (Mo.App.1987).