Interesting state case approving use of acquitted conduct at sentencing

In this post last week, I questioned a Second Circuit ruling that approved reliance on acquitted conduct in post-Booker sentencings.  A helpful reader today pointed me to an interesting state decision from the Missouri Court of Appeals today that likewise upholds the use of acquitted conduct at sentencing. 

Today's decision, Missouri v. Clark, No. ED84783 (Mo. App. Dec. 6, 2005) (available here), presents the acquitted conduct issue in a slightly different context than it often arises in the federal system.  First, Missouri is a state with jury sentencing, so the issue was whether it was proper for the sentencing jury to hear acquitted conduct evidence.  Second, the acquitted conduct at issue in Clark concerned past charges and acquittals, not conduct that produced an acquittal on some counts in the defendant's most recent trial.  But these differences were not central to the state court's decision that, in light of the Supreme Court's Watts decision, "the State was not precluded from introducing evidence of Clark's prior acquittals during the penalty phase of the trial."  Here is the official summary of the Clark decision:

The trial court did not abuse its discretion when it allowed the state to introduce evidence of acquitted crimes during the sentencing phase of the trial.  A jury's verdict of acquittal does not prevent the court, in the sentencing phase of the trial, from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.