Missouri Case Law

STATE v. NICHOLS, 27047 (Mo.App.S.D. 12-4-2006) STATE OF
MISSOURI, Plaintiff-Respondent, v. JAMES M. NICHOLS,
Defendant-Appellant. No. 27047. Missouri Court of Appeals,
Southern District, Division Two. December 4, 2006.

Appeal From the Circuit Court of Camden County, Honorable
John R. Hutcherson, Judge.

Amy M. Bartholow, Attorney for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General and Lisa M.
Kennedy, Assistant Attorney General, Attorneys for

BATES, C.J., and BARNEY, J., — concur.



James M. Nichols (“Defendant”) was convicted by a jury of
committing first degree statutory sodomy, a violation of
Section 566.062.[fn1] He was sentenced to a term of thirty
years in the department of corrections to run consecutive
to a sentence he was already serving on a separate
conviction. Defendant appeals his conviction, contending
that the trial court erred in: (1) denying his motion to
dismiss, because he was not tried within the statutory
period set by the Uniform Mandatory Disposition of
Detainers Law (“UMDDL”); (2) failing to ascertain on the
record whether Defendant’s waiver of counsel was knowingly
and intelligently entered; and (3) permitting evidence of
Defendant’s prior misconduct. We reverse and remand.

Defendant does not challenge the sufficiency of the
evidence supporting his conviction. Viewing the evidence in
the light most favorable to the verdict the record reveals
the following.

In October of 1996, thirteen-year-old K.H. (“Victim”) was
staying at the family’s lake house in Camden County,
Missouri, with her stepfather, Defendant. Victim’s mother
and sisters, who had remained at their home in Franklin
County, Missouri, were planning on joining them the next
day. The morning after their arrival, as Victim was getting
out of the shower, she discovered Defendant waiting for her
and holding her towel. Defendant dried Victim off with the
towel and then led her to his bed. Using lotion as a
lubricant, Defendant proceeded to fondle Victim’s breasts
and “forcefully” rub her vagina, at one point, inserting
his finger into Victim’s vagina. After a while, Defendant
stopped and told Victim to get dressed. Victim left and
went to her friend’s house, where she waited until her
mother arrived that evening.

In August of 2000, after Victim’s mother had divorced
Defendant, Victim and her older sister, E.H., reported
Defendant’s sexual abuse to the Franklin County
authorities. Detective David R. Scott (“Detective Scott”)
of the Franklin County Sheriff’s Department, investigated
the allegations. In September of 2000, Detective Scott
visited Defendant in O’Fallon, Missouri, where he was
residing at the time. Defendant agreed to speak to
Detective Scott about the investigation. On the way to the
Sheriff’s Department, after Detective Scott advised
Defendant of his Miranda[fn2] rights, Defendant
spontaneously provided an account of incidents that had
occurred between him and his stepdaughters, which
corroborated the allegations of sexual abuse that had been
made. After arriving at the Sheriff’s Department, Defendant
continued to talk about what had occurred, before signing a
written waiver of his Miranda rights. Defendant then
provided Detective Scott with a written statement.

On February 18, 2003, while Defendant was serving time in
the department of corrections on a separate conviction, he
was charged by information with first degree statutory
sodomy. A jury trial on October 27, 2004, with Defendant
appearing pro se, resulted in a verdict of guilty. The
trial court sentenced Defendant as indicated earlier. This
appeal followed.

In his first point on appeal, Defendant argues that the
trial court erred in overruling his motion to dismiss
because he was not tried within the statutory period set by
the UMDDL. We disagree.

“[T]he right to be brought to trial within 180 days after a
proper request under [the UMDDL] is jurisdictional.” Carson
v. State, 997 S.W.2d 92, 98 (Mo.App.S.D. 1999). “[T]he
provisions of the UMDDL are not drenched in doubt or
ambiguity, and ‘a loss of subject matter jurisdiction
inexorably occurs by operation of law when an imprisoned
person who has initiated a proper request is not brought to
trial within the appropriately determined statutory time
period.'” Id. (quoting Russell v. State, 597 S.W.2d 694,
697 (Mo.App.W.D. 1980)). “Jurisdictional issues present
questions of law, which we review de novo and without
deference to the [trial] court’s determination.” State ex
rel. Garrett v. Dally, 188 S.W.3d 111, 113 (Mo.App.S.D.
2006) (quoting State ex rel. Nixon v. Moore, 159 S.W.3d 488,
490 (Mo.App. W.D. 2005)).

“The [UMDDL] provides for the prompt disposition of
detainers based on untried state charges pending against a
prisoner held within this state’s correctional system.”
State ex rel. Kemp v. Hodge, 629 S.W.2d 353, 354 (Mo. banc
1982).[fn3] Section 217.450.1 of the UMDDL provides that:

Any person confined in a department correctional facility
may request a final disposition of any untried indictment,
information or complaint pending in this state on the
basis of which a detainer has been lodged against him
while so imprisoned. The request shall be in writing
addressed to the court in which the indictment,
information or complaint is pending and to the prosecuting
attorney charged with the duty of prosecuting it, and
shall set forth the place of imprisonment.

A defendant who complies with Section 217.450.1 must be
brought to trial “[w]ithin one hundred eighty days after
the receipt of the request and certificate . . . by the
court and the prosecuting attorney,” or the untried
indictment, information or complaint must be dismissed.
Section 217.460. However, the UMDDL defines three instances
in which the 180-day period may be tolled: (1) the trial
court may grant “additional necessary or reasonable time .
. . for good cause shown in open court, the offender or his
counsel being present[;]” (2) “[t]he parties may stipulate
for a continuance[;] and (3) “a continuance may be granted
if notice is given to the attorney of record with an
opportunity for him to be heard.” Section 217.460.
Additionally, Missouri courts have held that any delays
attributable to the affirmative actions of a defendant will
toll the 180-day period. State v. Laramore, 965 S.W.2d 847,
850 (Mo.App. E.D. 1998). The State has the burden of
showing that the 180-day period should be extended. Id.

The following timeline is set out to assist in determining
whether Defendant was timely tried.

10/03/02 A Complaint was filed, alleging that Defendant
committed the felony of statutory sodomy in the first

11/12/02 The Camden County Sheriff’s Department places a
detainer against Defendant.

11/21/02 Defendant files an Inmate’s Request for
Disposition of Indictments, Informations or Complaints

12/09/02 Defendant’s Request is received by the

12/12/02 Defendant’s Request is received by the trial
court, triggering the 180-day period in which Defendant
must be tried.

02/18/03 Information filed.

03/12/03 The trial is scheduled to begin on May 19, 2003.

04/28/03 The State files a motion for continuance,
alleging good cause under the UMDDL, due to the
unavailability of an essential witness, Detective Scott,
who was placed on active military duty on March 14, 2003.

05/21/03 The trial court holds a hearing, and finds good
cause to grant the State’s motion for continuance over the
objection of Defendant, due to the unavailability of
State’s witness, Detective Scott, who had been ordered to
active military duty.

05/29/03 The trial is scheduled to begin October 20,

10/06/03 The State files its second motion for
continuance, alleging the continued unavailability of
Detective Scott.

10/20/03 A hearing is held on the State’s second motion
for continuance, with Defendant present. The trial court
sustains the motion finding that “[Detective] Scott [] is
still in Iraq, that he is not expected to return until
March 2004, that the State has no way to compel the
witness’ return from Iraq, and that the State needs the
witness to make their case and that the State is otherwise
ready to proceed.”

11/20/03 The trial is scheduled to begin April 20, 2004.

03/30/04 The State files its third motion for

04/20/04 A hearing is held on the State’s third motion
for continuance with Defendant present. The trial court
sustains the motion.

06/03/04 Defendant files a motion to dismiss alleging
that more than 180 days has expired since the filing of
his Request.

06/14/04 Defendant files suggestions in support of his
motion to dismiss.

06/30/04 The trial is scheduled to begin October 21,

10/21/04 The trial is delayed due to the illness of

10/27/04 The trial court overrules Defendant’s motion to

10/27/04 Defendant is tried and convicted.

The 180-day period for bringing Defendant to trial began on
December 12, 2002, when his Request was received by both
the prosecutor and the trial court. Meyer v. State, 854
S.W.2d 69, 71 (Mo.App.E.D. 1993). However, when calculating
the expiration of the 180-day period, the day of receipt is
excluded, State v. Galvan, 795 S.W.2d 113, 118 n. 8
(Mo.App.S.D. 1990), as are the periods which are properly
tolled pursuant to Section 217.460 and any delays
attributable to the affirmative actions of Defendant.
Laramore, 965 S.W.2d at 850. The delay from the original
trial date of May 19, 2003, to October 27, 2004, is almost
entirely attributable to continuances granted to the State.

As previously set out, the trial court may grant
“additional necessary or reasonable time [to dispose of a
detainer] for good cause shown in open court, the offender
or his counsel being present[.]” Section 217.460. In this
case, the trial court sustained the State’s motions for
continuance based on the persistent unavailability of the
State’s witness, Detective Scott. The record reflects that
each continuance was granted in open court and in the
presence of Defendant. Therefore, as Defendant explains,
“the issue for this Court to resolve is whether the State
showed good cause to continue the trial sixteen months past
the original deadline.”[fn4]

The phrase, “good cause,” as it is used in the UMDDL, is
neither defined by statute nor Missouri case law. However,
Section 217.480 provides that the UMDDL “shall be so
construed as to effectuate its general purpose to make
uniform the law of those states which enact it.”
“Therefore, cases which have interpreted [“good cause”] in
the other jurisdictions which have adopted the uniform act
. . . are valuable for interpreting the statute.” Hodge,
629 S.W.2d at 359. Several jurisdictions have held that it
is within the trial court’s discretion to determine if good
cause exists for extending the UMDDL time limit. See
Nebraska v. Caldwell, 639 N.W.2d 663, 667 (Neb.Ct.App.
2002); Minnesota v. Miller, 525 N.W.2d 576, 580
(Minn.Ct.App. 1994); North Dakota v. Kania, 341 N.W.2d 361,
365 (N.D. 1983). At least one jurisdiction has held that
“[g]ood cause under [the UMDDL] encompasses a situation
where a witness is unavailable.” Caldwell, 639 N.W.2d at
667. Therefore, we will reverse the trial court’s good
cause determination based on the unavailability of
Detective Scott “only upon a very strong showing of abuse
of discretion.” State v. Wolfe, 13 S.W.3d 248, 261 (Mo.
banc 2000).

Where a party seeks a continuance on account of the absence
of a witness, the motion must show:

(a) The facts showing the materiality of the evidence
sought to be obtained and due diligence upon the part of
the applicant to obtain such witness or testimony;

(b) The name and residence of such witness . . . and also
facts showing reasonable grounds for belief that the
attendance or testimony of such witness will be procured
within a reasonable time;

(c) What particular facts the affiant believes the
witness will prove, and that he knows of no other person
whose evidence or attendance he could have procured at the
trial, by whom he can prove or so fully prove the same

(d) That such witness is not absent by the connivance,
consent, or procurement of the applicant, and such
application is not made for vexation or delay, but in good
faith for the purpose of obtaining a fair and impartial

Rule 24.10. “All of these factual matters are essential to a
proper consideration of the motion and to allow appellate
review.” State v. McCarter, 820 S.W.2d 587, 589
(Mo.App.E.D. 1991).

Here, in its first motion for continuance, filed on April
28, 2003, the State alleged that “Detective Scott’s
supervisor at the Franklin County Sheriff’s Department
advised [the prosecutor] that Detective Scott and his
National Guard Unit had been ordered to active duty for
military service on March 14, 2003[,] and that the period of
active duty would not exceed 365 day[s].” The State further
set out that Detective Scott’s unit was expected to be sent
to Kuwait or Iraq in the very near future, and Detective
Scott was not able to be subpoenaed. The State maintained
that Detective Scott’s testimony was essential to its case,
in that Defendant provided Detective Scott with detailed and
specific information concerning Defendant’s abuse of
Victim. The State explained that it was not aware that
Detective Scott had been ordered to active duty until it
had made efforts to contact him in preparation for trial.
Attached to the State’s motion was a copy of the National
Guard’s order placing Detective Scott on active duty.

On May 21, 2003, the trial court sustained the State’s
motion for continuance, making the following findings:

(1) That [Defendant] filed [Request] on Dec. 12, 2002;
(2) Case is set for trial for trial [sic] period May 19
thru May 23, 2003 which is within 180 days of filing of
[Request]; (3) State’s necessary witness [Detective] Scott
was called to active military service on March 14, 2003,
two days after case setting was announced. . . . Witness
[Detective] Scott is serving in U.S. Military in Operation
Enduring Freedom, Iraq, and is not available for trial;
(4) Court finds that the State is ready for trial except
for the availability of [Detective] Scott. Witness
[Detective] Scott is not available for trial because of
circumstances not in the control of the State . . . and
therefor [sic] the Court finds for good cause that there
is a need for additional time for this case to come to
trial and the Court orders such additional necessary
time pursuant to [Section] 217.460 to bring this charge to
trial and the provisions of [Section] 217.460 finding a
reasonable additional time will be allowed to obtain the
presence of the investigating officer [Detective] Scott at
trial of this case after he is returned from military
active duty.[fn5]

The trial court granted the State two additional
continuances in open court and in the presence of
Defendant, due to the continued unavailability of Detective

In arguing that the State failed to show good cause to
continue the case beyond the 180-day period, Defendant
relies on evidence presented at the motion to dismiss
hearing held on October 27, 2004. At that hearing,
Detective Scott testified that: (1) he was in training in
Missouri from the middle of March until the end of May 2003,
when he was deployed to Iraq; (2) he returned home for
leave for two weeks in October 2003; and (3) he remained on
active military duty until the second week of July 2004.
Relying on Detective Scott’s testimony, Defendant argues
that “the State failed to show good cause why it could not
have subpoenaed Detective Scott to a timely trial —
or to a deposition to preserve his testimony —
before he left the country.” In support of his argument,
Defendant cites federal regulations allowing state
prosecuting attorneys to subpoena active duty military
personnel to depositions and other criminal proceedings,
and Rule 25.14 which allows a prosecuting attorney to take
the deposition of a witness to preserve testimony.

The determination to extend the 180-day period for good
cause shown was initially made by the trial court on May
21, 2003. The trial court continued the case again on
October 20, 2003, and April 20, 2004. There is no
indication in the record that the evidence presented at the
October 27, 2004, hearing on the motion to dismiss was
available to the trial court when it heard the State’s
motions for continuance. “In reviewing whether the trial
court’s ruling amounts to an abuse of discretion, we
consider only those facts that were before the court when
it ruled on the motion[.]” Chandler v. Multidata Systems
Intern. Corp., Inc., 163 S.W.3d 537, 546 (Mo.App.E.D.
2005); see also State v. Jackson, 141 S.W.3d 391, 395
(Mo.App.S.D. 2004) (explaining that “[i]ssues and evidence
. . . not presented to or decided by the trial court are
not preserved for appellate review”); Robinson v. Empiregas
Inc. of Hartville, 906 S.W.2d 829, 837 n. 7 (Mo.App.S.D.
1995) (holding that, “[b]ecause the affidavit was not
before the trial court at the time the court made the
ruling attacked in Defendant’s first point, we cannot
consider it”).

The trial court has great discretion in granting or denying
a motion for continuance. On the record before this Court,
and based on the information available to the trial court
at the time it heard the motions for continuance, we cannot
say that the trial court abused that discretion.

Finally, Defendant argues that even “[i]f this Court
believes that the State has shown good cause to extend
[Defendant’s] trial . . . it must still find error in the
trial court’s extension of the trial to late-October,
2004.” Defendant explains that “Detective Scott returned to
Missouri during the second week of July, 2004, and the State
failed to make any attempt to show why [Defendant’s] trial
must be further delayed for nearly 3Ë? more months.” The
State’s third motion for continuance was granted on April
20, 2004. On June 30, 2004, two weeks before Detective
Scott returned home, the trial was reset for October 21,
2004. There is no indication in the record that the trial
court set the trial for late October 2004 with the
knowledge that Detective Scott was returning to Missouri in
July 2004. As previously set out, “[i]n reviewing whether
the trial court’s ruling amounts to an abuse of discretion,
we consider only those facts that were before the court
when it ruled on the motion[.]” Chandler, 163 S.W.3d at

Here, the trial court granted the State’s third motion for
continuance and ordered the case to be reset, based on the
continued unavailability of Detective Scott. Section
217.460 authorizes the trial court to grant “additional
necessary or reasonable time” to bring the case to trial.
We do not find that the additional time granted pursuant to
the State’s third motion for continuance was unreasonable.

Absent the tolling of the 180-day period, the deadline to
bring Defendant to trial was June 11, 2003. However, the
180-day period was tolled from May 19, 2003, to October 21,
2004, for good cause shown in open court. The additional
delay in bringing Defendant to trial was attributable to
the illness of Defendant. Taking into account the periods
which were tolled, Defendant was tried within the statutory
period set by the UMDDL, and therefore the trial court did
not err in denying Defendant’s motion to dismiss. This
point is denied.

In his second point, Defendant maintains that the trial
court committed plain error in allowing Defendant to waive
his right to counsel and proceed pro se without
ascertaining on the record whether his waiver was knowingly
and intelligently made. We agree that Defendant’s right to
counsel was not properly waived, and therefore we must
reverse Defendant’s convictions and remand this case for a
new trial.

Defendant concedes that he has not properly preserved this
allegation of error for appeal, but he requests that this
Court review for plain error. To be entitled to relief
under the plain error rule, a defendant must demonstrate
that “the error so substantially affected the defendant’s
rights that a manifest injustice or a miscarriage of
justice would inexorably result if the error were to be
left uncorrected.” State v. Deckard, 18 S.W.3d 495, 497
(Mo.App.S.D. 2000); see Rule 30.20.

“The Sixth and Fourteenth Amendments of [the United
States] Constitution guarantee that a person brought to
trial in any state or federal court must be afforded the
right to the assistance of counsel before he can be validly
convicted and punished by imprisonment.” Faretta v.
California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45
L.Ed.2d 562 (1975). The Sixth Amendment also guarantees a
defendant the right to waive counsel and proceed pro se.
State v. Clay, 11 S.W.3d 706, 712 (Mo.App.W.D. 1999).
However, “[w]hen an accused manages his own defense, he
relinquishes, as a purely factual matter, many of the
traditional benefits associated with the right to counsel.
For this reason, in order to represent himself, the accused
must ‘knowingly and intelligently’ forgo those relinquished
benefits.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45
L.Ed.2d 562. For a defendant to “competently and
intelligently [] choose self-representation, he should be
made aware of the dangers and disadvantages of
self-representation, so that the record will establish that
‘he knows what he is doing and his choice is made with eyes
open.'” Id. (quoting Adams v. United States ex rel. McCann,
317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)).

Regarding the waiver of a defendant’s right to counsel,
Section 600.051 states, in pertinent part:

1. Any judge of a court of competent jurisdiction may
permit a waiver of counsel to be filed in any criminal
case wherein a defendant may receive a jail sentence or
confinement if the court first determines that defendant
has made a knowledgeable and intelligent waiver of the
right to assistance of counsel and the waiver is signed
before and witnessed by the judge or clerk of the court,
providing further that the waiver contains at least the
following information which the defendant has read or
which has been read to the defendant before the signing

(1) That the defendant has been charged with the offense
of . . . (nature of charge must be inserted before

(2) That the defendant has a right to a trial on the
charge and further that the defendant has a right to a
trial by a jury;

(3) That the maximum possible sentence on the charge is .
. . imprisonment in jail and a fine in the amount of . . .
dollars or by both imprisonment and fine. That the
minimum possible sentence is . . . imprisonment in jail
or by a fine in the amount of . . . dollars or by both
such confinement and fine;

(4) That the defendant is aware that any recommendations
by a prosecuting attorney or other prosecuting official
are not binding on the judge and that any such
recommendations may or may not be accepted by judge;

(5) That if defendant pleads guilty or is found guilty of
the charge, the judge is most likely to impose a sentence
of confinement;

(6) That, if indigent, and unable to employ an attorney,
the defendant has a right to request the judge to appoint
counsel to assist the defendant in his defense against the

The trial court’s determination that a defendant has made a
knowledgeable and intelligent waiver of the right to counsel
“must be based upon inquiry conducted on the record so
there is evidence that a defendant understood the
ramifications of the waiver.” City of St. Peters v. Hodak,
125 S.W.3d 892, 895 (Mo.App.E.D. 2004). “Absent an inquiry
on the record showing Defendant understood the ramification
of the waiver of counsel, the imposition of jail time is
unconstitutional.” State v. Johnson, 172 S.W.3d 900, 902
(Mo.App.S.D. 2005).

Here, the trial court related the following in a docket
entry dated April 14, 2003: “[Defendant’s] motion to
proceed [p]ro [s]e is sustained. [Defendant] advised
regarding the risks of [p]ro [s]e representation.” However,
both parties indicate that this hearing was not held on the
record. On October 26, 2004, the following exchange took
place regarding Defendant’s waiver of counsel:

[Prosecutor]: The only other thing I can think of is just
for purposes of the record, I don’t have a specific
recollection, but I assume that Judge Franklin or Judge
Dickerson in the past has talked to [Defendant] about the
down side of representing himself.

The Court: Let’s find out. [Defendant], have they talked
to you about that, Judge Franklin or Judge Dickerson,
either one, talked to you about the advisability of
representing yourself?

[Defendant]: Judge Franklin did a little bit. He said I
would be crazy to go against a seasoned prosecuting
attorney and not have the guy that was working for me that
didn’t file anything on my behalf.

The Court: So you’re still comfortable with your decision
to represent yourself?

[Defendant]: Yes.

The Court: Okay, I’ll not interfere with that, you
certainly have the right to do so.

The April 14, 2003, docket entry reflects that Defendant
was advised regarding the perils of self-representation.
However, this hearing was not held on the record. The
inquiry taking place on October 26, 2004, only confirms
that Defendant was told he would be crazy to proceed pro
se. This inquiry, while on the record, does not sufficiently
demonstrate that Defendant understood the ramifications of
the waiver of his right counsel. Johnson, 172 S.W.3d at
902. The trial court erred in allowing Defendant to proceed
pro se without performing the required inquiry on the
record. Id.

In addition, we note that there is no indication in the
record that a written waiver was executed in this case. To
provide objective assurance that a defendant is knowingly,
intelligently and voluntarily waiving his right to counsel,
Section 600.051 requires that the waiver be in writing.
State v. White, 44 S.W.3d 838, 842 (Mo.App.W.D. 2001).
Regarding Section 600.051, the Missouri Supreme Court has
stated that “[t]he General Assembly has fixed the signing
of a written waiver form as being a necessary part of the
procedure to be followed in a criminal case wherein a
defendant may receive a jail sentence or confinement, and
the courts must abide by it.” Peterson v. State, 572 S.W.2d
475, 477 (Mo banc. 1978). “[S]ince the effective date of
[Section] 600.051 (August 13, 1976) the use of the written
form prescribed therein has been mandatory and [the]
failure to use the written form as mandated is reversible
error” Id. The Court has subsequently recognized two
exceptions to the rule pronounced in Peterson.

In May v. State, 718 S.W.2d 495, 497 (Mo. banc 1986), the
Court concluded that, “Peterson should not be applied to
mandate the written waiver when the statutory waiver is
presented to the defendant in open court and read into the
record, and he maintains his purpose of conducting his own
defense, while explicitly refusing to sign.” The Court
stated that “[t]o hold otherwise would permit a form of
gamesmanship which might seriously interfere with trial
proceedings.” Id.

In State v. Hunter, 840 S.W.2d 850, 860 (Mo. banc 1992),
the Court adopted the position already held by the Missouri
Court of Appeals, that Section 600.051 is inapplicable
where a defendant has hybrid counsel. The Court noted that
“one who has ‘standby’ counsel or ‘hybrid’ counsel has the
aid and assistance of an attorney and has not actually
waived counsel.” Id.

A third exception has been recognized where a waiver of
counsel is implied by the conduct of a defendant. See State
v. Yardley, 637 S.W.2d 293, 295 (Mo.App.S.D. 1982). This
exception arises where a non-indigent defendant says he
wants counsel but refuses to employ a lawyer. Id. “A fair
construction of [Section] 600.051 is that it applies only
to express waivers. To construe that section otherwise
would create a vehicle by which a procedurally wise
defendant could frustrate the administration of justice.”
Id. at 295-96.

Here, there is no indication in the record that a written
waiver was executed in accordance with Section 600.051.
Furthermore, nothing in the record indicates that:
Defendant refused to sign a written waiver; Defendant was
represented by “hybrid” counsel; or that Defendant wanted
counsel but refused to employ a lawyer. Therefore, under
Peterson, the trial court’s failure to comply with the
mandatory requirements of Section 600.051 constitutes
reversible error.

A waiver of counsel form, without a record of a hearing is
insufficient. Hodak, 125 S.W.3d at 895. Here, the trial
court did not execute a written waiver of counsel in
accordance with Section 600.051, and did not determine on
the record whether Defendant’s waiver was knowing and
intelligent. Therefore, we must reverse and remand this
case for a new trial. This point is sustained.

Defendant’s third point is not preserved for appellate
review and is not dispositive to our disposition of this
appeal. However, because the issues raised by this point
are likely to arise on remand, we will provide some
discussion. Defendant alleges in this point that “[t]he
trial court plainly erred in allowing the State to introduce
evidence of [Defendant’s] other alleged sex crimes against
his other step-children[.]”

A criminal defendant has the right to be tried only for the
offense for which he is charged. State v. Pennington, 24
S.W.3d 185, 189 (Mo.App.W.D. 2000). Therefore, evidence of
uncharged crimes or prior misconduct is inadmissible if
offered for the purpose of showing a defendant’s propensity
to commit the crime with which he is charged. State v.
Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).

However, evidence of uncharged crimes or prior misconduct,
“although not admissible to show propensity, is admissible
if [it] is logically relevant, in that it has some
legitimate tendency to establish directly the accused’s
guilt of the charges for which he is on trial.” Id. In
addition, the evidence must be legally relevant; that is,
its probative value must outweigh its prejudicial effect.

Generally, evidence of other uncharged crimes or prior
misconduct is logically relevant when it tends to
establish: (1) motive, (2) intent, (3) absence of mistake
or accident, (4) a common scheme or plan, or (5) the
identity of the person charged. State v. Beal, 966 S.W.2d 9,
13 (Mo.App.W.D. 1997). “An additional exception is
recognized for evidence of uncharged crimes that are part
of the circumstances or the sequence of events surrounding
the offense charged. This evidence is admissible to present
a complete and coherent picture of the events that
transpired.” State v. Harris, 870 S.W.2d 798, 810 (Mo. banc
1994) (internal citations omitted).

Evidence of prior misconduct that does not fit any of the
articulated exceptions may still be admissible if it is
logically and legally relevant. Bernard, 849 S.W.2d at 13;
see also State v. Sladek, 835 S.W.2d 308, 312 (Mo. banc
1992) (explaining that “evidence of the commission of an
uncharged crime may prove motive or intent or another
material fact, but in any event the evidence must have some
legitimate tendency to directly establish the defendant’s

In the present case, Victim’s sister, E.H, testified that
when she was thirteen and Victim was twelve, Defendant
bought them alcohol, and after they became inebriated, he
sat between them on the couch and “touched both of [their]
genitals.” Detective Scott’s testimony revealed that there
were allegations that Defendant had sexually abused Victim,
E.H., and another sibling. Detective Scott also testified
that Defendant had made statements corroborating those

At trial, Defendant did not seek to suppress evidence of
prior misconduct, did not object to its admission at trial,
and did not allege error in its admission in his motion for
new trial. “The court cannot be faulted for not excluding
testimony for a reason not made known to it.” State v.
Mayes, 63 S.W.3d 615, 639 (Mo. banc 2001). The matter in
this point was not preserved for our review and is denied.

Nevertheless, 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 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

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 the victim. The trial often becomes a
credibility contest between the defendant and the victim.
Evidence of prior crimes in such situations, is,
therefore, probative.

Id. at 17 (internal citations omitted). However, the Court
warned that:

[f]or corroboration evidence to be of sufficiently
increased probative value so as to outweigh its
prejudicial effect, the evidence must be more than merely
similar in nature to the sexual assault for which the
defendant is charged. Evidence of prior sexual misconduct
that corroborates the testimony of the victim should be
nearly identical to the charged crime and so unusual and
distinctive as to be a signature of the defendant’s modus
operandi. This is a threshold requirement that must be met
before the trial court can proceed to weigh any
additional factors in determining the question of


The judgment is reversed and remanded for further
proceedings consistent with this opinion.

[fn1] All references to statutes are to RSMo (2000) and all
references to rules are to Missouri Rules of Criminal
Procedure (2004), unless otherwise indicated.

[fn2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).

[fn3] “A detainer is a request filed by a criminal justice
agency with the institution in which a prisoner is
incarcerated, asking the institution either to hold the
prisoner for the agency or to notify the agency when
release of the prisoner is imminent.” Carchman v. Nash, 473
U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516 (1985).

[fn4] We recognize that in his point on appeal, Defendant
claims that the trial court erred in overruling his motion
to dismiss. However, the decision to extend the 180-day
period for good cause was made by the trial court at an
earlier date when it ruled on the State’s motions for
continuance. Therefore, we must review those rulings first.

[fn5] The trial court’s May 21, 2003, order, in the form of
a docket entry, indicates that a hearing was held in open
court. However, both parties have informed this Court that
this hearing was not recorded. Additional facts concerning
the continuance may have been conveyed to the trial court
off the record. However, we can only review the record
before this court.

[fn6] There is no indication in the record that Defendant
objected to the subsequent continuances. The only hearing
on the State’s motions for continuance that was recorded
was the October 20, 2003, hearing, where Defendant made no
argument in opposition to the State’s motion for
continuance. “If a defendant acquiesces to a trial date
beyond the 180-day period, the court does not lose
jurisdiction and the statute is tolled.” State v. Jackson,
155 S.W.3d 849, 852 (Mo.App.W.D. 2005).