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Missouri amendment would allow past allegations to be heard in child sex abuse cases

Updated: 2013-10-03T04:28:51Z

By GLENN E. RICE

The Kansas City Star

Initially, Daryl D. Lemasters seemed almost too good to be true.

The 54-year-old Platte County man volunteered for overnight camping trips with Boy Scouts and Girl Scouts. He attended youth events in place of an absent parent and helped organize a haunted hayride outing.

But Lemasters had a dark side. A jury convicted him of repeatedly sexually assaulting two girls, taking videos of one of them while they were naked and offering to take them to a water park in exchange for sexual acts.

In August, a Platte County judge sentenced him to 180 years in prison on six counts of child sexual abuse. Lemasters’ attorneys have appealed the verdict and the sentence.

The girls Lemasters molested had to answer difficult questions in court, but their mother says they might have been spared that ordeal if prosecutors had been able to tell jurors about previous allegations of sexual abuse against Lemasters. If so, Lemasters might have pleaded guilty before the case went to trial, she said.

Platte County Prosecutor Eric Zahnd agrees, and he wants voters to pass an amendment to the Missouri Constitution in fall 2014 that would allow prosecutors in child sexual abuse cases to tell jurors about a defendant’s prior sex offenses, even allegations for which the person never faced charges.

Missouri is more restrictive than any other state, barring prosecutors from telling jurors about prior criminal sex acts in nearly all cases against accused child predators, said Zahnd, who wrote the proposed amendment.

“This amendment impacts cases involving dangerous, repeat sex offenders preying on our most vulnerable citizens — children,” he said. “By its very nature, child sex abuse occurs behind closed doors, and there is often very little evidence other than a child’s word against that of the abuser.”

In May, the Missouri General Assembly approved a House joint resolution to place the proposed amendment on the statewide ballot. Lawmakers rejected two previous attempts to change the law.

Fifteen states, including Illinois, Arkansas, Oklahoma and Nebraska, permit prosecutors to introduce evidence of past criminal acts with few or no exceptions. Federal courts also allow the evidence.

The remaining states, including Kansas, permit that evidence in some circumstances. Only Missouri excludes the evidence in almost all situations.

If approved, the amendment would affect cases in which the victim is younger than 18. A trial judge still would have to decide whether jurors would hear about the past crimes.

But critics of the measure say it would let prosecutors give unwarranted weight to allegations of past wrongdoings rather than focus on the merits of the current criminal charges.

“If the prosecutor doesn’t have a good case, then he or she doesn’t have a good case and should not try to use character assassination to put people in prison,” said Kim Benjamin, the president of the Missouri Association of Criminal Defense Lawyers. “That is just un-American to use rumor and innuendo and character assassination to take away someone’s liberty.”

Authorities learned in February 2011 that Lemasters allegedly had touched two girls inappropriately. Investigators served search warrants at Lemasters’ home and business, and they found on his computer a pornographic video showing one of the victims.

Later, investigators heard from other girls who said Lemasters molested them. The mother of the girls he was convicted of molesting wishes jurors had known that.

“If this (measure) is approved, it would help a lot of children who would not have to go in front of a jury and be terrified and be forced to retell their stories,” said the mother, who is not being named to protect her identity and those of her children.

If approved, the amendment would nullify a 2007 Missouri Supreme Court ruling that excludes from child sex abuse cases evidence that a defendant has the propensity to commit a certain crime.

In that case, Donald Ellison, who lived in Livingston County northeast of Kansas City, was convicted of child molestation. Prosecutors told jurors that Ellison had been convicted in an earlier child abuse case.

The case ended up in front of the Missouri Supreme Court, which ruled that bringing up Ellison’s prior conviction violated the state constitution. Ellison was later retried and convicted.

“In sex offender cases, Missouri’s Supreme Court has been an activist court,” Zahnd said. “It has done backflips in an effort to construe the Missouri Constitution in a way that no other state or federal court has done in interpreting similar constitutional provisions.”

Efforts to amend the state constitution to conform to federal law and what other states have done are not unusual, said David Achtenberg, a professor at the University of Missouri-Kansas City Law School.

“This particular provision is not radical at all in that it’s very similar to things that exist in other states and in the federal government,” Achtenberg said. “You might be against it if you believe very strongly that evidence of a prior bad act tends to distort the process in a way that leads to convictions based on the old offense, but not that the new offense was committed by this person.”

Research shows that most perpetrators of child sex abuse have multiple victims, said Joy Oesterly, the director of Missouri KidsFirst, a statewide nonprofit child welfare advocacy agency.

Prosecuting child sexual abuse cases is difficult because very young victims must testify in front of a jury and face unsettling questions from a defense attorney, Oesterly said.

“This amendment gives prosecutors another tool to protect children,” she said.

To reach Glenn E. Rice, call 816-234-4341 or send email to grice@kcstar.com.

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