The issue relates to a 2014 amendment to the state constitution which allows propensity evidence in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age. It states in part, “relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. 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.”

A Missouri Supreme Court ruling could impact the trial of a former Camdenton businessman accused of forcible sodomy, statutory sodomy and sexual abuse.

In July 2016, a mistrial was declared by Judge Kenneth Hayden after Dennis Purdy had entered an Alford plea and a guilty plea to the charges against him stemming from an alleged incident with an underage employee at his former business in Camdenton on June 4, 2013. The mistrial was issued when Judge Hayden began reviewing the sentencing assessment report completed by a probation officer with Purdy and both prosecutor and defense attorneys objected to several portions of the report, which is used to determine the defendant's sentencing.

The defense objected to several mistakes in the report related to a wrong date, misinformation about Purdy and what Defense Attorney Fawzy T. Simon called "uncharted and unrelated allegations" regarding the defendant's character. 

Judge Hayden granted Simon's objection based on a recent Missouri court ruling and struck a paragraph in the report that the state had planned to use as propensity evidence against the defendant. Propensity evidence is evidence that the defendant engaged in prior bad acts or bad behavior and is thus more likely to engage in those bad acts of behavior again.

Hayden dismissed the pleas due to the conflicts in the report and statements made by Purdy.

The issue in the latest motion on propensity evidence in the case relates to a 2014 amendment to the state constitution which allows propensity evidence in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age. It states in part, “relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged. 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.”

The prosecution has filed a motion to introduce propensity evidence in the trial against Purdy, scheduled to begin April 25, 2017.

On Jan. 31, 2017, the Missouri Supreme Court ruled in State Ex Rel. Tipler v. Michael Gardner that this type of evidence is allowable in certain cases in the state, even when the alleged crime took place prior to the amendment.

In its opinion, the Missouri Supreme Court said it was expressing no opinion at this time on how the amendment was applied, but rather on whether it could be applied at all in the Tipler case which related to an alleged attempted statutory sodomy in 2013.

The Court rejected the claim by Tipler that the new rule of evidence adopted through the amendment could only be applied to trials occurring after the Dec. 4, 2014 effective date of the amendment. 

Tipler argued that this provision may not be applied retrospectively. In some cases, that is correct, the ruling stated.

However, judicial decisions construing existing constitutional provisions can be given retroactive effect. The difference is that the amendment speaks not to the actual crime but to the trial, according to the ruling, as in the Tipler case.

“Nothing in article I, section 18(c) pertains to the criminality of particular conduct. It does not purport to make previously legal conduct illegal, or to make previously illegal conduct legal. Nor does article I, section 18(c) purport to change the punishment for actions that already have occurred, or to change the facts that the state must prove in order to sustain a conviction for such acts. Instead, by its plain language, the 2014 amendment addresses only the admissibility of evidence in ‘prosecutions for crimes of a sexual nature involving a victim under eighteen years of age.’ Accordingly, to say that article I, section 18(c) applies only prospectively is to say that it applies only to trials occurring on or after its effective date,” the ruling states.

How the trial court applies the 2014 amendment to the propensity evidence in Purdy’s case remains to be seen. Judge Donald Lloyd Barnes is scheduled to preside over the trial at the Camden County Courthouse.