By: Lydia Crawley
The Parsons Advocate
A motion to exclude character evidence has been filed in the case of Clayton Mallow. Mallow was indicted by grand jury on 34 counts of Fraud and Related Activity in connection with access devices on October 16th. Mallow’s attorney James Fox argued the motion before Judge Courrier on May 15th.
Under the argument by the defense, evidence that Mallow had received soiled socks and underwear from minors in exchange for gifts should be suppressed due to its inherently prejudicial nature. Attorney Fox further stated that should the evidence be brought before a jury, it would unfairly sway jury opinion and would lead to a conviction on a matter that had nothing to do with the case at hand. “There is a distinct danger of unfair prejudice,” Fox said.
Fox went on to say that he felt his client would not receive a fair trial should the details behind the character allegations be revealed in open court before a jury. Fox also said he felt that should the allegations be revealed to a jury, it would inevitably lead to an unfair conviction. “If we walk in here and its said he’s getting socks and underwear from young kids, its over,” Fox said.
Attorney Fox argued that the case should remain centered on the allegations of theft by charges to credit cards that did not belong to the defendant, not to the character allegations raised surrounding the purchases and gifts sent to minors and argued that that the character allegations should remain, “distinct and separate. Fox further said, “Is it relevant?”
Tucker County Prosecuting Attorney Savannah Hull Wilkins said that the character details surrounding the purchases were key to the case and tied directly to several counts in the 34 count indictment. Wilkins said that in two counts, lift tickets were reserved under the name of a local juvenile. This juvenile, according to Wilkins, admitted to receiving items in exchange for other items of a personal nature such as the socks and underwear discussed in open court. “It is tied directly to this count,” Wilkins said.
Wilkins went on to say that in several other counts, purchases were tied to juvenile addresses and mentioned one minor who started receiving items between the age of nine to 11. Wilkins also said that the defendant would purchase such things as vapes and beer in exchange for the socks and underwear. The purchase of televisions, clothing and tennis shoes were also mentioned by Wilkins. “Its the specific connection to this crime,” Wilkins said.
Wilkins went on to say that all the information and its ties to the case were presented to the defense during the discovery phase of the case. Included evidence, according to Wilkins included photos taken by Amazon delivery drivers of doors that were not the defendant’s, other Amazon delivery photos, snapchat evidence and emails. “It is tied directly to what we are trying to prove,” Wilkins said.
Wilkins said that her case hinges on what the defense was calling character evidence. “The State couldn’t definitely prove that Mr. Mallow did this, if this is not included,” Wilkins said.
Wilkins said that the State has a lot of evidence that ties Mallow to the crime and to juveniles. “There are many counts and we have plenty of records that ties this to several juveniles,” Wilkins said.
Fox said he had no objection to the shipping evidence, but felt that the evidence concerning the socks and underwear went too far and constituted character evidence. “We haven’t come so far in society that we have got beyond that,” Fox said. “Its a catastrophe for the defendant. That is why we have the relevancy test. There’s no way once it comes out that we can get over this.”
Judge Courrier asked the defense what they thought would happened should the evidence that items were shipped to juveniles was presented with no explanation. Fox said that there was no legal requirement that an explanation be given for the evidence only that the State was required to prove that the theft occurred. “There’s no requirement that the jury know why he did it,” Fox said. “Did he steal a card, did he steal account numbers, did he purchase something?”
Wilkins said that she felt that if the evidence is not submitted to a jury, that a lot of questions will remain. “I think there is going to be a lot questions.” Wilkins said.
Judge Courrier said he would review the case law presented by the defense in their motion as well as consider the arguments before him. A follow up hearing was scheduled. Judge Courrier said he would issue an order on the motion, either approving or denying, prior to the next hearing.