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Analysis Williams challenges the constitutionality, proper construction, and application of article I, section 18(c), which Missouri voters added to the Missouri Constitution in 2014. Though the Court shares Williams's concern, the record in this case shows the circuit court admitted the evidence of Williams's prior criminal act only after carefully considering the probative value of – and the risk of unfair prejudice from – that evidence and concluded (albeit implicitly) the latter did not substantially outweigh the former. Evidence in the record that the circuit court analyzed relevant factors and engaged in the balancing required under article I, section 18(c) makes it possible for appellate courts to review the circuit court's evidentiary ruling with the level of deference that the “abuse of discretion” standard requires. Williams also claims article I, section 18(c) violates his constitutional right to a jury trial.
The prosecution's case rested on the testimony of [the boys]. As a result, the factors set forth in this opinion, and the weight given to those factors, are merely illustrative of the legal relevance analysis article I, section 18(c) requires. Graham, Jr., 22B Federal Practice and Procedure: Federal Rules of Evidence § 5259 (2d ed. Here, Williams pleaded guilty to the 1996 charge, removing any doubt as to whether he had committed the criminal act, and the evidence of his 1996 conviction came in principally by way of a stipulation read to the jury. This is the source of the circuit court's concern with the similarity between the prior criminal act and the charged crime and with the amount of time between the two. For example, an inference of propensity might be proper notwithstanding a significant time lapse between the prior crime and the charged crime if the two crimes are highly similar. This Court's short-lived “corroboration” theory is an illustration of this approach. Williams argues article I, section 18(c) lacks the protection Rule 403 provides to Rule 414 because he claims, unlike these federal rules of evidence, the Missouri constitutional language merely allows – but does not require – the circuit court to exclude evidence when “the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Notwithstanding the word “may” in Rule 403, federal courts uniformly have held propensity evidence must pass the legal relevance test in Rule 403 before it can be admitted under Rule 413 or 414. The defense induced at least six witnesses who had not discussed Williams's prior criminal act on direct examination to discuss the matter on cross-examination. Before propensity evidence can be said to have any probative value, it must be sufficient for the jury to conclude the defendant actually committed the prior criminal act. Accordingly, there was ample evidence for the jury to conclude the act described in the stipulation occurred. To be probative (i.e., logically relevant), the evidence of the prior criminal act must tend to show the defendant actually had a propensity to commit the charged crime at the time it is alleged to have occurred. Indeed, the two considerations are inversely related. On the other hand, an inference of propensity might not be proper if the prior crime and the charged crime are only somewhat similar unless the two occurred over a short span of time. See, e.g., Schaffer, 851 F.3d at 181-82 (“Rule 403 requires a district court to exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice.”) (quotation marks omitted) (emphasis added); Le May, 260 F.3d at 1027 (“Potentially devastating evidence of little or no relevance would have to be excluded under Rule 403.”) (emphasis added); Castillo, 140 F.3d at 882 (“Rule 403 excludes evidence, even if it is logically relevant, if its prejudicial effect substantially outweighs its probative value.”) (emphasis added); Enjady, 134 F.3d at 1433 (“Rule 403 requires that if the trial court concludes the probative value of the similar crimes evidence is outweighed by the risk of unfair prejudice it must exclude the evidence.”) (emphasis added). Even then, these witnesses spent only a minute or two on the matter and their testimony on the subject was only a small part of their total testimony. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Williams makes his argument without reference to the text of article I, section 18(c). banc 2011) (“This Court may not engraft upon [a] statute provisions which do not appear in explicit words or by implication.”) (citation omitted). The circuit court's evidentiary ruling “will not be disturbed unless it is clearly against the logic of the circumstances.” Id. “[I]f reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Anglim v. See Le May, 260 F.3d at 1028 (noting “although the district judge did not discuss the specific factors ․, the record reveals that he exercised his discretion to admit the evidence in a careful and judicious manner”). Accordingly, this Court rejects Williams's jury trial claim for the reasons expressed above.13. 2013) (express finding not required if the lower court's “Rule 403 reasoning is ․ apparent from the record”) (citation and quotation marks omitted); Smith v. The conduct underlying Williams's prior conviction occurred in 1996, and the acts with which he was charged in the present case began in 2008. See, e.g., Wigmore, supra, § 62.2, at 1335 (asserting many of the “rationales are often fiction rather than fact”); Dix, et al., supra, § 190 (“[C]ourts in many of the jurisdictions that still do not overtly admit evidence of sex crimes with other victims as revealing an incriminating propensity achieve a similar result by stretching to find a nonpropensity purpose.”) (footnotes omitted); Leonard, supra, § 9.4.2, at 596-97 (“[D]espite broad-based academic criticism of unlinked plan theories, the case reporters contain countless child sexual molestation prosecutions adopting the ‘common scheme or plan’ theory.”) (footnotes omitted); Reed, supra, at 207-08. In many American jurisdictions, evidence of a defendant's prior acts of sexual misconduct is commonly admitted in prosecutions for offenses such as rape, incest, adultery, and child molestation.