*1 CLARK, Appellant Daniel C. Kentucky,
COMMONWEALTH of
Appellee.
No. 2005-SC-000177-DG. Kentucky.
Supreme Court of 24, 2007.
May *2 Lambertos, Louisville, KY, David A. count as to L.H.—of children less than Appellant. Counsel for twelve of age and two counts of first- degree sodomy count as to E.H. and —one Stombo, Gregory Attorney D. General of one count to L.H.—of children less than Lenz, Kentucky, Susan Roncarti Assistant *3 years age twelve between May 1998 and General, Attorney Attorney Office of the charges proceeded 2002.1 The to trial. General, Division, Appellate Criminal selection, Frankfort, KY, During jury the trial court Appellee. Counsel for granted the Commonwealth’s motion to Opinion of the Court Justice charge sodomy dismiss the of L.H. MINTON. trial, During the trial court allowed the Commonwealth to amend the indictment to I. INTRODUCTION. accuse committing Clark of the offenses juryA convicted Daniel Clark of two May between 1999 and rather than counts of sexual degree abuse the first between 1998 and 2002. for which he was sentenced to total of Clark, L.H. and E.H. testified who years’ imprisonment. ten A divided panel friend, family was a Appeals repeatedly the Court of affirmed and over a Clark’s convictions, granted discretionary and we course of reached his hands into review. pants their and penises. fondled their Generally, each testified that such contact
Clark contends that the trial court erred Clark, occurred when he was alone with (1) by refusing jury to instruct either the child’s home or in (2) Clark’s degree, sexual abuse in the second vehicle. L.H. testified that Clark once permitting present the Commonwealth to he, Clark, jury penis fondled of Clark’s sexu- his while L.H.’s victim, al involving misconduct another grandmother, watching and E.H. were (3) by refusing him permit play together. television And E.H. testified videotaped a social worker’s inter- placed that Clark penis his mouth on his alleged views of the find victims. We mer- occasion, on at least one but L.H. did not it in arguments, Clark’s first two and we testify any oral sexual contact with necessity, reverse on those issues. Of we Clark. Both E.H. and L.H. testified that find no error in Clark’s third contention request Clark did not that either of them videotapes because the are not in the rec- touch him in a sexual manner. ord for us to review. permitted
The Commonwealth was also M.M., II. AND FACTUAL PROCEDURAL to call M.M. as a witness.2 who was HISTORY. thirty-three years the time of trial, Clark, testified that in his former role Clark’s indictment him with priest, as a Roman Catholic counseled committing of first-degree two counts sex- ual abuse—one count as to grade. E.H. one M.M. when he was in the sixth alleged problem reporter’s The indictment refers to the victims 2. Due to a with the court trial, trial, as A.B. and C.D. At the Commonwealth recording device at the record does not clarified that A.B. referred to E.H. and C.D. transcript contain a verbatim of M.M.’s testi- alleged referred Clark has not mony. parties presented M.M.’s referring to the victims in the indictment testimony in the form of narrative state- pseudonyms any those caused him to suffer ment. prejudice. M.M., According during counseling ses- both L.H. and E.H. between 1999 and sions, usually during May argues occurred based on 2002. Clark after school when Clark and M.M. to an charges, these entitled addi- were present, repeatedly placed Clark tional jury second-degree instruction on pants hands down M.M.’s and fondled sexual abuse as to L.H. because L.H. M.M.’s penis. M.M. testified that Clark 2001, approxi- turned twelve November repeatedly placed his mouth on M.M.’s mately May seven months before penis. M.M. also testified that Clark nev- when the time in the indict- period alleged er asked M.M. to touch in a Clark sexual expired. dividing ment Since the line years later, plead- manner. Several first-degree offense of abuse from *4 guilty ed to a criminal offense on based his second-degree sexual abuse is whether the sexual misconduct toward M.M. old,3 victim years agree is under twelve with Clark. jury
The found Clark of guilty sexual abuse in first degree against the both L.H. A is required court to instruct a and E.H. guilty but found Clark not of the jury supported by on all offenses that are sodomy against charge E.H. Consistent understandably the L.H. evidence.4 could recommendation, with jury’s the the trial date(s) pinpoint when Clark Clark years’ sentenced to im- five abused him.5 So indictment covered prisonment on each sexual charge, abuse period broad time from L.H. to be served a consecutively, for total of County September moved to Bullitt years’ ten imprisonment. The trial court 2002, May 1999 until which L.H.’s mother trial, denied Clark’s motion for a new family testified was the last time the had appeal Appeals Court of was problem contact with The Clark. obvious unavailing. granted thenWe discretion- with the time frame in the included indict ary review.
ment is that it includes several months III. ANALYSIS. twelve, though when L.H. was even charged can only crime be committed A. to Refusal Instruct on Sexual against a child who is less than twelve. Abuse in Second-Degree Was Im- proper. The at oral ar- Commonwealth conceded gument by seeking
After oral amendment erred indict it to trial, ment during charged Clark was amend the charge the indictment to limit committing first-degree that period sexual abuse to of time before L.H. turned (KRS) case, Kentucky 3. See Revised Statutes instructions on the whole law the 510.110(1); 510.120(1); Tungate KRS v. Com applicable requires this rule to instructions monwealth, 41, (Ky.1995) every supported state case of the deducible or ("The [i.e., lesser offense sexual abuse in the any by testimony.”). to extent degree] proscribes second sexual contact with old, person years less than fourteen while 5.Then-Judge pointed astutely Schroder out abuse, first-degree felony, sexual a Class E> involving in a similar abuse of a case sexual prohibits person the same conduct awith less years victim twelve "[i]t less than years age.”) than twelve other meth wholly expect would be unreasonable committing ods of sexual abuse in the first spe- child of such tender to remember degree, degree, or second set forth in the dates, long especially given peri- cific time inapplicable statutes are the facts hand. od over the abuse Farler v. occurred.” Commonwealth, (Ky. S.W.2d Taylor ("In case, App.1994). (Ky.1999) a criminal it is the duty judge prepare give beyond a reasonable doubt inexplicable have believed twelve. The Commonwealth’s sexually failure to do so led to a situation which that abused him before Clark twelve, testify twelve, the victim was unable to conclusive- turned after turned L.H. occurred, leaving ly about when the abuse sup- evidence to or both. Since there was jury speculate as to whether the finding of first second- port a either happened abuse described L.H. before abuse, it incumbent degree sexual twelve, twelve, turned L.H. turned after he jury on upon trial court to instruct the problem magnified by This or both. charges. both fact L.H. to having testified of the record also reveals Our review Clark, repeatedly yet the indict- abused trial court’s refusal instruct single ment Clark with count jury caused second-degree sexual abuse Thus, jury abuse L.H. if the believed first-degree sexual instruction on beyond that Clark sex- a reasonable doubt flawed. seriously as to to be abuse L.H., ually specu- forced abused that the could That stated instruction late as to which instance of abuse was both first-degree guilty find and as to covered the indictment wheth- beyond if it believed abuse of L.H. abuse occurred particular er that act of *5 reasonable doubt: birthday. after twelfth before or L.H.’s county, in beginning That A. A lesser-included offense is an and in- continuing through 1999 and offense that includes the same fewer 2002, of cluding May[] month primary than the offense.6 And elements finding of Indict- and before the second-degree sexual abuse is a classic herein, subjected to ment [L.H.] first-degree sex lesser-included offense of contact, sexual of the victim at age ual abuse because the AND usually But the abuse is clear. time of contact, of B. That the time such age in those rare instances where (12) than was less twelve [L.H.] at the time of the abuse is victim years age. question, in the second de sexual abuse of first-degree to convict Clark So order gree be deemed a lesser-included of can abuse, beyond a jury had to find sexual the first-degree. fense of sexual abuse in (a) subjected doubt Clark reasonable that: a instruct on So trial court must both “and L.H. to sexual contact between 1999 offenses, thereby jury it to the to leaving May[ including ] 2002” offense, the month of any, if better fits the decide which added) sexual and that such (emphasis testimony.7 precise This is the scenario (b) L.H. was less contact occurred while present in this case because L.H.’s testi years old.8 Those two dis- mony vague jury that could than twelve was so 505.020(2)(a); instructing jury on the lesser included 6. KRS Hudson Common- wealth, second-degree sexual abuse offense of undisputed because the evidence old, years without twelve See victims under Kentucky Cooper Cetrulo, Instruc- 7. de- (stating holding § that sexual abuse in second 4.48 in the Juries, tions Criminal gree offense of commentary an cannot be a lesser-included there is issue as "[i]f victim, degree). Sec- abuse in the first age an instruction on sexual Third-De- ond-Degree Sexual Abuse and/or phrase usage “con- given gree as a lesser- The instruction’s Sexual Abuse should including” appears tinuing through first-degree also offense sexual [of included (re- jury engaged abuse]”). require the find that Clark Tungate, 901 S.W.2d at Cf. toward in a continuous course of conduct jecting argument a trial court erred an findings inherently juror are could Crete inconsistent such that a reasonable have since is uncontested that turned the victim either concluded that eleven May occurred, twelve several months before or twelve when abuse jury could not have found be- failing jury court errs to instruct on yond reasonable doubt that Clark sub- first sexual abuse. second-degree both jected “through L.H. to sexual contact and Thus, conviction for Clark’s sexual abuse 2002” including May[ the month while ] degree in the first of L.H. be re- finding also beyond reasonable doubt versed. years less than
that L.H. was
twelve
Allowing
B.
Pri-
Evidence of Clark’s
age
contact occurred.
or Sexual Misconduct
to be Introduced
L.H. was not
than
years
less
twelve
During
Phase Was
Abuse
Guilt
May
of Discretion.
juror
Since a
could
had a rea
pleaded guilty
Clark
sexually
sonable doubt that Clark
abused
first-degree sexual abuse and second-de
birthday, yet
L.H. before L.H.’s twelfth
gree sodomy. He was
to a total
sentenced
beyond
have been convinced
a reasonable
years’ imprisonment.
of fifteen
But the
sexually
doubt that Clark
abused L.H. af
sentence was
for five
on
probated
L.H.’s
birthday,
ter
twelfth
the failure to
condition that
serve three months in
instruct the
on second-degree sexual
jail.
objection,
Over Clark’s
the Common
cannot
abuse
be deemed a mere harmless
permitted
wealth was
offer
testimo
error.9
ny M.M.,
of the sex
one
abuse victims
In summary, we acknowledge that
now argues
Clark’s 1988 conviction. Clark
situations, an
most
*6
instruction
second-
permit
trial court’s decision to
degree sexual abuse is not a lesser-includ-
testimony
M.M.’s
was reversible error.
ed offense when the primary charge is
agree.
We
first-degree sexual abuse. And the trial
acted
properly
case
refus-
the trial
unique
Since
court’s
role
to
ing
instruct
second-degree
requires
on
gatekeeper
evidence
on-
abuse as to Clark’s alleged
the-spot
admissibility
conduct toward
on the
ruhngs
of evi
dence,
E.H. since E.H.
turned twelve October
may
reverse a trial court’s deci
2002,
expiration
several months
only
after the
to admit
sion
evidence
if
decision
of the time
set
period
represents
forth in the indict-
an abuse of
And
discretion.10
ment. But in a
charge
situation like the
for a
an
trial court’s decision to
abuse of
be
date(s)
L.H.,
involving
discretion,
where the
of the
we must find that the decision
unreasonable,
are
particularity
unfair,
abuse
not described with
“was arbitrary,
or
in either the indictment or
testimony
unsupported by
legal
sound
principles.”11
offense,
requirement
improper
primary
L.H. Such a
would be
dant was convicted of the
charged
only
as Clark
offense,
count
one
failure
on a
to instruct
lesser included
abuse.
thereon,
giving
an erroneous instruction
probably
present
was harmless error
have no
9.See,
Commonwealth,
e.g.,
v.
Webb
904
(internal
omitted).
validity.”)
footnote
226,
(Ky.1995) (holding
S.W.2d
229
that a
trial court’s
to
such an
”[r]efusal
allow
in-
See,
e.g.,
v.
Brewer
206
offense],
struction
a lesser-included
[on
(Ky.2006).
320
supported by
presented,
the evidence
consti-
error”);
tutes reversible
Cooper
Cetrulo,
English,
11. Commonwealth
Kentucky
Juries,
Instructions
Criminal
1.05(B) ("Cases
§
holding
that if
defen-
neatly
any
fit into
ruling
excep-
looking
at whether the
does
404(b)(1).
in KRE
But
tions enumerated
M.M.’s
abuse
admitting
illustrative,
discretion,
exceptions
list
is
by Kentucky
guided
we are
(KRE) 404(b),
Among the non-enumerated
exhaustive.15
Rules of Evidence
crimes,
to KRE
exceptions
recognized
we have
of other
provides
“[e]vidence
404(b)’s
on the intro-
prove
general prohibition
wrongs, or
is not admissible
acts
evidence is the
prior
duction of
bad acts
person
character of a
order
show
by the Common-
conformity
exception advanced here
action in
therewith.” General
wealth,
by
accepted
the trial court and
prior
are inad
ly, a defendant’s
bad acts
So,
“[ujltimate
operandi.16
Appeals:
man
modus
fairness
Court
missible because
case, we must
only
tried
for the
in order to resolve Clark’s
that an accused be
dates
yet
murky waters of deter-
again
charged.
for which
is
enter
particular crime
misconduct
mining
prior
whether
is
to be tried
one
An accused
entitled
admissible,
difficult,
time,
must
a defendant is
at a
and evidence
be
offense
fact-specific inquiry, as evidenced
The rule is
confined to that offense....
opinions
deemed our own
jus
demands of
fact that we once
on the fundamental
based
“somewhat scat-
topic
have been
play.”12
and fair
tice
tered.”
404(b)
being
KRE
We have construed
is a
exclusionary in nature since
well-
“[i]t
re
operandi exception
modus
that evidence that
known fundamental rule
surrounding
prior
quires “the facts
on trial had committed other
a defendant
strikingly
so
similar
misconduct
unless
offenses
never admissible
as to create
reason
offense
which are
exceptions,
comes within certain
(1)
were com
probability that
the acts
able
404(b)
it-
the rule [KRE
]
well-defined
(2)
person,
mitted
the same
and/or
reason, any
exceptions
self.”
For that
accompanied by the same mens
acts were
prior
general
rule that evidence of
bad
not,
If
rea.
then
evidence
“closely
should be
acts
inadmissible
disposi
proves
a criminal
misconduct
strictly
watched and
enforced because
tion and is inadmissible.”
prejudicial
con-
dangerous quality
*7
the
court’s
In
we affirmed
English,
sequences of
kind of evidence.”14
of
prior
of evidence of
acts
sexu-
admission
victims,
404(b)(1)
recog-
misconduct toward other
provides
KRE
that evi
al
was offered
wrongs
nizing
or
that “the evidence
prior
of
crimes
admissi
dence
motive,
the
of
opportu
operandi
purpose
a modus
“proof
if
show
ble
offered for
motive, intent, knowledge, and the
intent,
knowledge,
nity,
preparation, plan,
proving
Spe-
mistake or
identity,
accident[J”19
mistake or aeei- absence of
or absence of
English
case,
testimony
cifically,
prior
the
bad acts
In
dent[.]”
M.M.’s
13,
Commonwealth,
Commonwealth,
v.
973 S.W.2d
O'Bryan v.
15. Tamme
12.
153,
(Ky.1998).
(Ky.1982) (although O’Bryan pre-
29
Kentucky
adoption of
Rules of
dates the
See,
English,
e.g.,
at 945.
16.
S.W.2d
Evidence,
quoted language
is in accor-
404(b)).
dance with KRE
Billings
v.
17.
(Ky.1992).
Buford,
13. Commonwealth
English,
baseline
that
contact
penis;
the
pants
victim’s
fondled
E.H.,
M.M.,
Clark and
between
any
Clark never asked
of the three victims
is,
itself,
pattern’
of
not
in and
a distinct
reciprocate
to
his
contact with
sexual
operandi
to
the
satisfy
sufficient
modus
them;
of trust
position
and Clark was
a
Indeed,
exception.
such sexual contact is
with each victim.
necessary
a
prerequisite for the commis-
words,
that
agree
sion
the
In other
the
with the Commonwealth
of
offense.
We
was similar.
penis
all
of all three victims
fact that Clark touched the
of
merely
Although the fact that
victim was
victims
an element of the
each
three
satisfy the
first-degree sexual abuse.27 Be- under twelve is evidence to
offense of
element,
statutory
not
sufficient
person
satisfy
all of the
evidence
cause a
operandi exception,
of
to
to meet
modus
elements
the crime
order
commit
abuse,
fairly
fact
of
first-degree
alone
fact that
victims were
similar
ages
all
males—is entitled
penis
prepubescent
touched the
three
that Clark
—all
weight
meeting
element of the crime.
to at least some
toward
victims is mere
Likewise, the
that
burden under
fact
all three victims
the Commonwealth’s
operandi exception.
apparently
were
less than twelve
of modus
they
subjected
age at the time
the Common-
agree
But we do not
with
sexual contact
also an element
Clark is
that
the fact that Clark fondled
wealth
strong
not
the crime and is
evidence
penis
significant
victim’s
is a
factor
each
pattern
distinct
conduct sufficient
pattern necessary to
the distinctive
show
So,
exception.
operandi
meet the modus
exception.
operandi
the modus
Con-
meet
benefit
and bar of this
bench
between the abuser and
intimate
tact
we stress
fundamental
only
body parts
appears
the abused
that serves
satis-
principle
conduct
sexual contact neces-
requisite
meet
fy
of an offense will
statutory
elements
first-degree
to commit
sexual abuse.
sary
operandi
to meet the modus
not suffice
fondling
all
conclusion that Clark’s
This
Instead,
operandi
exception.
modus
sufficiently
distinctive
three victims is
if
only
is met
the conduct that
exception
necessary to
to rise to the level
meet
statutory
evidences
meets
elements
exception is reinforced
operandi
modus
rise
pattern
a distinctive
as to
such
did
fondle his
the fact
signature
level of
crime.
penises
subjected two of the
victims’
—he
is,
The lack of
therefore,
oral-genital
what
victims to
contact.
question
other
allegation
placed
that Clark
abuse of
consistent
similarities exist between Clark’s
of his victims
penis
mouth on the
of all
alleged
and his later
abuse of E.H.
M.M.
L.H.,
greatly
purported
undercuts the
distinct
that Clark’s abuse of all
such
agree
abuse.
pattern to Clark’s
We
pattern
falls into the distinct
neces-
three
operandi
the fact
for the modus
the Commonwealth
sary
qualify
*9
contact.”)
KRS
of
to "sexual
Buford,
at 71.
510.010(7)
"any
defines "sexual contact”
510.110(b)2 (providing
per-
KRS
that a
27. See
parts
touching
or
intimate
of the sexual
other
degree
abuse in the first
son commits sexual
person....”
aof
than
subjects
he
someone less
twelve
contrast,
Clark never
nu-
sought reciprocal
By
sexual con-
sexual contact.
there are
by any
weighs
tact
of the three victims
in
in
to-
merous differences
Clark’s conduct
operandi
favor
exception
of modus
in this
previously
ward all three victims. As
mentioned,
case.
not all of the victims accused
orally abusing
though
Clark of
And
them.
Finally, though
accept
we
the Common-
agree with
that it
we
is
premise that
posi-
wealth’s
Clark was in a
necessary
always
that
abuse
occur
victims,
tion of trust
to all
three
we
location,
geographical
the same
the abuse
disagree with the Commonwealth’s conten-
many
of all
dif-
three victims occurred
position
tion that Clark’s
of trust relative
school, bedrooms,
places,
ferent
such as
to each victim
significant weight
has
bathrooms,
rooms,
living
and vehicles.
meeting
exception.
the modus operandi
Moreover, Clark sometimes abused the
role
vastly
Clark’s
different with M.M.
children when he was alone with them and
than it was with E.H.
and
Clark was
abused them
sometimes
when others were
acting
aas
counselor or
confessor
his
Finally,
around.
position
Clark’s
re-
role
priest;
long-
as M.M.’s
but he was a
gard
vastly
and E.H. and L.H.
M.M.
is
family
E.H.,
time
friend to L.H. and
which
different
he was
because
a counselor and
pastor. Thus,
did not
his role
involve
as a
M.M.,
priest to
a longstand-
while was
it can neither be said
Clark
that
evidenced
ing
family
friend
of E.H. and L.H.
pattern
abusing
distinctive
children he
So,
that, most,
it
at
appears
there were as
role
pastor,
contacted
his
as a
can it
nor
many differences as similarities between
be said that
abused children he
past
alleged
Clark’s
and current
conduct.
came into contact with in his non-profes-
This
equipoise
state
relative
is
sional life.
insuffi-
position
Since Clark’s
and sta-
cient meet
markedly
demanding
tus with
modus oper-
M.M. was
than
different
L.H.,
andi exception.28
was with E.H. and
we cannot
accept
the Commonwealth’s contention
Even Anastasi
v. Commonwealth>29
a position
Clark was in
of trust as to
“pressed
have acknowledged
all
in a sufficiently
victims
similar manner
admissibility
limits
uncharged
of other
operandi
meet the modus
exception.
grounds
similarity
criminal acts on
suffi-
considered,
all
operandi[,]”30
"When
are
cient to indicate a modus
similarities
what
compelling
we are left
reaching
presented
pattern
with is Clark
more
hands
the pants
down
of three victims who similar conduct than does the case before
were all of the
approximate age
Though
same
with- us.
it predates our recent reit-
asking
out
reciprocate
the victim to
eration that
acts
prior
focus
bad
28.See,
(“We
e.g., Buford,
peculiar
100 operandi exception under the modus Even if we had that determined facts, be on the the common- minimal common not had a the Commonwealth satisfied crimes, ality entirely the is Anastasi showing of distinctive of conduct pattern reconcilable with that as well as principle, by to signa Clark sufficient constitute a there with our conclusion that is not crime, probative ture the value of M.M.’s enough commonality of facts to distinctive testimony pattern that would meet modus operandi exception the in this destroyed by fact that the Clark’s case. twenty years abuse of M.M. occurred over today.32 Tempo before the case before us
Anastasi,
today,
as in the case
us
before
goes
weight,
ral
not the
remoteness
the
charges
first-degree
involved
admissibility,
prior bad
evid
acts
trial,
At
abuse.
the Commonwealth was
the
temporal
ence.33 The
remoteness of
testify
permitted
have a witness
that the
prior bad
is of
concern
acts
less
when
eight
him
anally raped
defendant
pattern
evidence of the
of conduct falls
Despite
rape
before.
the fact that
is obvi-
defined,
patt
within a clearly
distinctive
ously an
elements
offense
different
however,
stated,
ern.34 As previously
first-degree
than
crime of
sex-
Clark’s conduct
M.M.
toward
does
abuse,
ual
we affirmed because the defen-
crime,
signature
bear the hallmarks
victims,
all
including
dant’s conduct toward
meaning
lapse
that the vast time
between
victim,
rape
strikingly
similar.
Clark’s abuse of M.M. and
We said that
in this case
evidence
“[t]he
abusing
a significant
L.H. and E.H.
young boys
that all
disclosed
victims were
counterweight
balancing
proba
managed
with whom Anastasi
to be alone
testimony
tive value of M.M.’s
and the
in
bedrooms.
In each instance
This is
only
prejudice
in
undue
it caused Clark.
dressed
his underwear and all vic-
tims,
fact
one,
light
except
especially
were clothed
in un-
true
case,
authority in
prior
In
no
derwear.
each
sexual Commonwealth has cited
contact, he
old
twenty-plus year
tickled
wrestled with the which we deemed
shown,
fact,
admissible.
previously
sexual bad
children.”31 As
there
act to be
pattern
such a distinctive
of we have condemned the introduction
prior
misconduct
case
us.
bad
far
remote
before
acts
less
Anastasi,
larity
operandi
31.
754 S.W.2d
862.
indicative of a
relevant
modus
Only
charge.
two
the first
incidents
even a
Commonwealth,
616,
related
the third witness exhibit
Robey
32.
943 S.W.2d
being
general correspondence
("This
to the offense
(Ky.1997)
continuing
Court has a
any probative
But
tried.
worth which
problem deciding
prior
when evidence of
might
is diminished
admissible,
resemblance
endue
acts become too remote to be
significant temporal
those
remoteness of
adopt bright
ruling
line
have refused to
reasons,
princi
For these
and on the
events.
concerning
temporal
remoteness
other
ples
fully explained
opinion
our
more
requires
probative
KRE
crimes.
Commonwealth,
relevant,
[Billings v.
evidence,
843 S.W.2d
if
value of
even
must sub
(Ky.1992)],
today, we
that the
rendered
hold
danger
stantially outweigh
preju
of undue
prior
case
sexual acts in this
requirement
dice. The
that the
act
unfairly prejudicial
genuinely
than
was more
integral
determining
'not too remote’ is
probative.”).
Thus,
probative value
evidence.
independent
remote in time
fail
act too
will
English,
403.”);
S.W.2d at
balancing
required by
KRE
test
Commonwealth,
Gray v.
above,
(“As
(Ky.1992)
the vari
Lear v.
summarized
allegations
striking
evince
ous
here
no
simi
*11
lay
than the
wealth
one
case
hand.35 There-
contends
Clark failed
fore, given the lack of distinctive similari-
for
proper foundation
the introduction of
ties
Clark’s
between
conduct toward M.M.
he
ask L.H.
tapes
these
because
did not
L.H.,
and his conduct toward E.H. and
we
only
about the
and
one com-
tapes
asked
probative
find that
value of M.M.’s pound question
tapes.37
of E.H. about the
diminished
greatly
by
was
Although
presents
potential-
issue
temporal remoteness of Clark’s abuse of
ly important
as to
question
the foundation-
M.M.
requirements
al
needed to
a vid-
introduce
short,
we find that
the Common-
eotape
to show
a witness
purporting
heavy
wealth has not met its
burden to
coached,
had
precluded
are
from
M.M.,
show that Clark’s conduct toward
addressing
on
that issue
its merits because
E.H., and L.H. is so similar and distinctive
tapes
in the
Surpris-
are not
record.
as to be admissible
oper-
under the modus
ingly,
tapes’
absence from the record
404(b).
exception
andi
to KRE
That con- was not
Ap-
mentioned
Court
clusion
by
twenty-year
is reinforced
peals’ opinion,
was it
nor
mentioned
gap
time
with Clark’s
sexual bad acts
parties’
during
briefs or
the extensive oral
Therefore,
toward M.M.
the set
under
argument
we heard
this issue.
case,
facts of this
we find that “ultimate
by
At a bench conference conducted
fairness”
and
“fundamental demands
trial court
after
Commonwealth had
justice
play”
fair
required
Clark to
rested and
motion
a directed
Clark’s
be tried for
for which
crimes
denied,
verdict had been
the Common-
charged;
abused
objection
wealth stated its
to Clark’s coun-
by
its
permitting
discretion
M.M. to testify
play
sel’s
the videotaped
intention to
inter-
about
the offense committed
Clark.36
discussion,
views of E.H. and L.H. After
C. We Cannot Determine the Admis-
the trial court
that it
stated
believed the
sibility
Videotaped
Interviews of
tapes were not admissible but further indi-
E.H. and L.H. Because Those Video-
give
cated
it would
counsel time dur-
tapes
Are Not
the Record.
ing the lunch recess to research the issue.
Clark contends that the trial court erred
break,
Before that
lunch
Clark’s counsel
permit
refusing
play
him to
video-
following
had the
discussion
the trial
tapes
that allegedly show a
court:
social
“coaching”
worker
E.H. and L.H.
right.
MR. LAMBERTUS: Ml
Clark contends that
tapes
are self-
authenticating
admissible
Judge,
because
if the Court does not re-visit
they
provided
to him
the Com-
I
tapes,
and allow these
then would
discovery.
monwealth in
The Common-
submit
record
for the
that I would like
See,
897;
cross-examination,
e.g., Gray,
Robey, 37.During
following
S.W.2d at
colloquy
(holding
prosecu-
occurred between E.H. and Clark’s
S.W.2d at
that in a
counsel:
rape,
rape
tion for
evidence of an earlier
Q.
you
you
Do
started
should
remember
first
been admissible because
talking
you
about that
went to see
social
single sixteen-year-old
“[t]he evidence of a
your
they
worker and
had
statements
conviction, although the crimes had similar
tape
you
it.
video
Do
remember that?
remote.”).
aspects,
too
A. No.
Q.
talking
You do remember
a social
O’Bryan,
manded proceed- to the circuit court for grand jury the utilized its discretion to ings opinion. consistent with this only indict Appellant on sexual abuse even degree, though first it could also C.J., LAMBERT, McANULTY, Appellant have indicted for sexual abuse NOBLE, JJ., SCHRODER, concur. degree. in the second Since these crimes SCOTT, J., opinion dissents separate exclusive, mutually are not conviction i.e. CUNNINGHAM, J., in which joins. one not preclude crime does conviction other, of the the trial court not man- Dissenting Opinion by Justice SCOTT. sep- dated to submit instruction for the I concur with the majority’s determina- arate, uncharged, but crime of “lesser” tion the trial court must be affirmed degree. sexual in the abuse second See regarding deny its decision to admittance Commonwealth, Hudson v. tapes video into evidence. Howev- (“An (Ky.2006) on a sepa- instruction
er, I respectfully dissent because I rate, uncharged, but ‘lesser’ other crime-in not do believe the trial court erred when it words, an theory alternative of the crime- Appellant’s overruled motion to instruct on required is when a verdict guilty an unindicted crime. I also dissent be- alternative crime would amount to a cause I do not believe court crime, i.e., charged defense to the permitted abused its discretion when it being guilty mutually crimes ex- both testimony clusive.”). from one of Appellant’s prior majority To hold as the does victims. today appellant allow a “would criminal simply
seek reversal of conviction be- I. Refusal to instruct on unindicted cause the trial failed to instruct as
crime was not error. to all the criminal acts have may com- mitted, regardless of whether other The testimony this undisput- case was uncharged any bearing crimes have ed. L.H.’s that Appel- indicated guilt charged as to the Id. crimes.” lant molested him on a continual basis for (3) years almost three disagree 1999 and I majority’s further with the —between May (12) 2002. L.H. holding turned twelve was entitled to an Appellant November 2001. Since some of sexual instruction on sexual abuse in second may abuse have degree occurred after L.H.’s as a “lesser-ineluded offense.” See birthday, twelfth Appellant could have Thomas v. (1) (“An charged of: guilty (Ky.2005) with found instruction on a (2) abuse in the first degree; sexual offense is if the required lesser-ineluded (3) degree;
abuse the second both to rational- permit evidence would crimes. ly guilty find the defendant not retrial, they videotapes upon pre- are not in Because the record before are admissible us, express opinion suming they no whether the axe as to found. offense, during exposed which L.H. testified he was guilty but lesser
primary offense.”)- abuse; finding majority’s The and the second sets forth argument would truly if of those that L.H. was less than twelve have merit was one age during at point period.2 victim some “rare instances where jury’s focus was question.” required, time of abuse narrowed course, although crimes may But case. because Op. at 94. that is birthday, Ap- occurred after L.H.’s twelfth question can no L.H.’s There pellant was not indicted or age at the time of the abuse because those crimes. any of undisputed; evidence was it indicated Indeed, these instructions repeatedly between his was molested air, from plucked they thin but rather birthdays. Appel- ninth and twelfth Since *14 the crafted to conform with evidence were any lant was not crimes presented Appel- as it was at trial —that birthday, L.H.’s occurred after twelfth repeatedly molested L.H. between his lant jury not have rational for the would birthdays, ninth and thirteenth but in Appellant guilty to find of sexual abuse only being prosecuted was for Appellant degree.1 I Accordingly, the believe second L.H.’s prior crimes occurred in sexual abuse the sec- instruction on meaning birthday. plain the twelfth When degree ond a “lesser-included offense” properly of these instructions are consid- was in clearly improper this case. at presented in light ered of the evidence I flaw” in the Finally, see no “serious[ ] trial, nothing the simply there about in jury regarding instruction sexual abuse fairly could be classified instructions that degree Op. the of L.H. at 94. The first inaccurate, or inconsistent. misleading, required jury instruction the to make two Accordingly, respectfully I dissent because findings: regarding I do not believe there was error jury in the instructions submitted county, beginning A. That this case. continuing through and includ- 1999 and 2002, May[ ing ] the month of before Permitting II. here, finding Indictment abuse of victim was not contact;
subjected to sexual [L.H.] discretion. AND majority The also faults the trial contact, B. at time That of such making very close call on whether (12) years was than twelve [L.H.] less “so against crimes committed M.M. were age. charged offense as strikingly similar to the assertions, majority’s operandi. to create” a modus Common Contrary to the 941, 945 “inherently English, v. nothing there is inconsistent” wealth Although majority dis findings. Op. at 95. The first about these ultimate de of time with the trial court’s finding period agrees sets forth the broad Thus, above). credibility was an jury believed that abuse enced L.H.’s If the somehow birthday, occurred after L.H.’s twelfth but nothing proposition; no all or had prior, proper verdict case would in this testimo- choice but to believe or discount the course, guilty. Of have been not scenario ny entirety. in its implausible speci- since was unable to fy act the time when each of abuse occurred Thus, finding a sub- the second (other say than to that sexual abuse occurred finding. set of first span year repeatedly during the three refer-
105 termination, victims), it is proper gitally penetrated for this Court both child to set trial court’s determination aside v. English, Commonwealth “arbitrary, (fact unless the is clearly (Ky.1999) decision that defendant unreasonable, unfair, or unsupported each vaginal touched area of victim was sound legal principles.” Id. I Because be determining past relevant whether lieve decision court’s is nowhere “strikingly enough crimes were similar” unfair, arbitrary close to I from dissent admissible); Martin, S.W.3d majority’s holding the trial court’s (striking similarity in crimes fact included discretion must be overruled. were victims “abused similar area, touching vaginal always with
Although paying
lip service to
con-
penetration”).
out
Dickerson
Com
cept,
majority
fails to
the “dif-
respect
Cf.
monwealth,
(Ky.2005)
ficult, fact-specific inquiry”
conducted
(modus operandi was not
established
case,
the trial court.
atOp.
In this
large part because “no facts
intro
were
Appellant
in position
of trust with all
duced to describe the nature of
acts of
three
all
boys,
boys
were about the
sodomy” which
perpetrated against
same
age,
strikingly, Appellant
most
victim).
each
age.
same is true with
all the
boys
molested
the same manner.
See,
e.g., Anastasi v.
The molestation is particularly unique be-
*15
(fact
860, 862 (Ky.1988)
S.W.2d
that all
cause
testimony
Ap-
established that
victims
“young boys”
were
in
relevant
pellant
boy’s
fondled each
genitalia and
“pattern
conduct”);
establishing
of
En
performed
sometimes
oral
boys,
sex on the
(fact
glish, 993
at 945
each
S.W.2d
but
boys
never asked the
to reciprocate or
“prepubescent
victim was a
female” was
touch
Appellant
anyway.
relevant in determining similarity
past
of
pertinent analysis
The
case
this
is
Martin,
(strik
crimes);
Indeed, this Court has on several occa himself in position a of trust with each one sions considered the factual details sex of these boys. majority emphasizes a ual contact when determining superficial whether evi Appellant’s difference between See, past dence of a is crime admissible. roles it related to each of the victims— e.g., v. Appellant Funk priest served in the role of with (Ky.1992) (past 480-81 was sim longtime crime M.M. and then in role of ilar to enough large family part admissible with E.H. and friend L.H. While alleged because defendant was have di is difference relevant and should be Anastasi, M.M., E.H., considered, and L.H. See majority overemphasizes superficial (strikingly title conduct of this similar significance S.W.2d change. though even sex acts were different found different); and the of the victims were Appellant It relevant consider that Martin, (strikingly at 380 simi role a priest no utilize the longer could though found even defendant lar conduct children since means victimize sodomy committing was accused of with his from that due to mis- position removed victims, only one of three defendant bribed against M.M. and most conduct Second things, and the children with different de course, although is that his pertinent, variously committed with one fendant acts different, may position been title time). children at a and two power influence in relation each remained the same. As both victim current Finally, majority misstated friend, family Appellant and a priest probative “the law when declared that young where placed position himself [Appel- as to value of M.M.’s him, him, trusted boys up looked would have pattern lant’s] conduct] [of This is a sought his counsel and advice. destroyed by [Appel- the fact that unique and characteristic that peculiar twenty occurred over lant’s] abuse of M.M. establishing pattern con- pertinent today.” the case before us years before and should not be discounted duct English, Op. at 100. In Commonwealth changed clothing. its because the wolf “temporal Court established between the regard to differences significant ... proximity is less victims, majority’s are weak. points operandi....” is modus issue First, Ap- while all three victims accused Car- (citing approval at 944 North fondling genitals, E.H. and their pellant of evi- upheld “admission olina case *16 alleged Appellant performed M.M. wrongful act which oc- prior dence of Second, the as well. abuse oc- oral sex charged before the curred seventeen Finally, Ap- locations. curred different offense”). act, “Thus, prior wrongful if the M.M., priest was a when he abused pellant thereof, is similar particular aspect so or family he abused friend when but a modus charged offense to show E.H. and L.H. an element operandi prove which tends offense, remoteness alone
In is suffi of assessing whether evidence suppression evi- operandi, require “it is does not cient to constitute a modus (Em- prior misconduct.” Id. be identical dence of required that the facts added). Moreover, contrary to the v. phasis Common respects.” all Dickerson assertion, wealth, majority’s the Commonwealth ap- authority case, primarily are cite Court the differences did of sex- temporally evidence proved the differ remote ones of circumstance. When v. are ual bad acts.3 See Lear light and similarities balanced ences (al- (Ky.1994) evidence, 659-660 totality of the the differ re- though prior temporally bad act was enough to are not substantial ences mote, mother, had herself similar victim’s who strikingly or outweigh dilute child, as a against raped by same defendant perpetrated of conduct pattern less than fifteen bad act occurred no opinion not reference the 3. While the does rape (15) likely in time between years, actual difference than closer and more daughter, rape her own the mother and (20) charged offense. twenty years, before the guess that the educated one could make an permitted testify regarding her abuse). the evidence is viewed in fair
When it light,
and balanced was not unreasonable arbitrary for the trial court deter- against
mine that the crimes committed
M.M. were strikingly “so similar
charged offense to create” a modus
operandi. Therefore, Id. I must
respectfully improper dissent because it is
for this Court to overrule the trial court’s
discretionary merely determination be- differently.
cause would have ruled
CUNNINGHAM, J., joins this dissent. Sexton, Special
David A. Assistant At- General, torney Assistant Jefferson Coun- Kentucky, COMMONWEALTH ty Attorney, Louisville, KY, Attorney for Appellant the Appellant. Helman, Scherer, A. Grant M. Stuart Ashley BLAKELY, Appellee. M. Helman, KY, Louisville, Smith & Attor- neys Appellee. for the No. 2006-SC-000313-CL.
Supreme Kentucky. Court of *17 CERTIFYING THE LAW May 24, 2007.
Opinion of the Court Justice SCOTT. Commonwealth, pursuant to CR 76.37(10), this Court for a petitions certifi- regarding Chapter cation of the law KRS Assembly’s 804. Due the General Chapter amendments to again presented question are once with the operator of whether a non-owner of a mo- penal- tor vehicle can be assessed criminal being ties because motor vehicle driven uninsured. The amendments Chapter primarily penalty affected provisions of the statute. These amend- ments included the addition of new sub-