*1 opinion in this and is refuted and discussed Repeated alle-
by the record this case. their valid- gations of error do not increase no individual error and ity. There was was no cumulative error. thus there Cf. Parrish, supra. fundamentally fair received a
Epperson consti- any trial devoid of state federal tutional federal violations. judgment of conviction and the sen- imposed are affirmed.
tences All concur. Kentucky,
COMMONWEALTH Appellant, BUFORD, Appellee. Marcus No. 2004-SC-000177-DG. Kentucky. Supreme Court April 2006. Aug. Denied Rehearing *2 Edwards, Megibow, & Megibow
Tod D. Paducah, for Appellee. Counsel ROACH, Justice. a decision appeals
The Commonwealth Appeals reversеd which of the Buford, for Appellee, conviction of Marcus Abuse. First-Degree counts of Sexual two cited the Court of opinion, In its reversing Ap- rationales for primary two (1) admission that the pellee’s conviction: testimony exchange between about friend and Greg Waldrop, Appellee minister, was prohibited fellow Amendment; testi- that the Fifth niece, S.B., relating to mony Appellee’s had made allegations of sexual abuse she years earlier ad- improperly several 404(b). and KRE mitted under and now granted discretionary review We though for of Appeals, affirm the Court slightly different reasons.
Background
I. tried in McCracken Court, where he was convicted
Circuit Abuse First-Degree counts of Sexual two five-year prison to two and sentenced consecutively. Appel- served terms be charges arose that he lee’s conviction girls, H.S. The had molested two J.R. and at girls youth group were members Methodist, Appel- Concord United where youth lant minister and was served youth charge group. of the The first incident occurred Appellee’s home October J.R., at the years who was 15 old involved group had youth Members time. sleep- Appellee’s for a gathered at home day next group leaving over—the trip. That several mem- youth night, on a General, living Stumbo, Attorney group D. were in Gregory bers Smith, watching a testified that Attorney David A. Gener- room movie. J.R. Assistant Division, Frankfort, al, lying during next to Appellate she was Criminal movie, her shirt and that he touched under Appellant. Counsel for clothes, touching her under her for several minutes. J.R. lee from and underwear tried, unable to do so. that she but was un- but she was also testified able, to remove hand from un- anyone the inci- H.S. did not tell about clothing. Ultimately, she excused der her day during the lock-in. The after the dent *3 bathroom, Appellee to the but con- herself lock-in, Ap- what she told her friend S.S. tinued to touch her after she returned to made clear pelleе had done to her. H.S. living room. J.R. testified that she anyone that she did not want to tell S.S. finally stop to the behavior able that about the incident because she feared in exclaiming, loudly enough for others get in trouble. On the Appellee would hear, in group something to that she had lock-in, Monday following the H.S. also night, Later that same J.R. testi- her ear. J.R., close to contacted who she knew was Appellee to find strad- fied that she awoke Appellee if had Appellee, and asked J.R. dling caressing inappro- her her back inappropriately. her J.R. did ever touched priately. away, that evе- right not answer but later story ning and related the happened confided what had to called H.S. back J.R. S.L., spoke youth group girls of her earlier abuse. The two another member of the girls phone throughout con- on the several times sleepover, at the and the two During period, Ac- next week. that same Appellee fronted about the incident. parents noticed that she was more girls, Appellee to the told them H.S.’s cording than usual and that she was that his had been a mistake and withdrawn behavior J.R., girl an older speaking regularly had confused J.R. with his wife. with he a previously ac- had not been close friend. girls Appellee The also testified that who mother confronted her about the knowledged wrong he had done was H.S.’s what approximately in one change but her behavior promised get counseling, to point, lock-in. At that H.S. anyone about the week after the begged them not to tell sexually Appellee ruin told her mother that had incident because it would his life. mother and father abused her. H.S.’s August The second incident occurred on Appellee, contact who attempted both H.S., 25, 2000, and involved was also who in they high had both held esteem daughter in and was the youth group revelations, daughter’s but he would their was 12 pastor. of Concord’s senior H.S. phone not return their calls. in years participated old at the time. H.S. brought After the Friday-night activity a “lock-in” youth light, Greg Waldrop, of the friend of church with other members event, church, and a minister at another confront- part youth group of the group. As about the serious overnight, charges church ed stayed members Waldrop had been made H.S. and J.R. meetings, played basket- participated in point regarding At testified the circumstances of ball, movies. some and watched meeting grand jury and as children attend- before night, several of the the trial. prosecution during clаss- witness a church ing gathered the event Essentially, Waldrop invit- testified after videotape. Appellee room to watch speaking with a local church official and during to him to lie next ed H.S. wife, obtaining permission Appellee’s that while she was testified movie. H.S. Appellee in an attempted speak he with he kissed her and lying Appellee, next to clothes, story get Appellee’s effort to side of her under her touched repeatedly However, Appel- girls’ about the claims. underwear. H.S. beneath her including Waldrop and speak refused to stop Appel- tried to lee that she аlso testified peals presence. his The Com- reasoned retreated from evidence, by Appellee over inadmissi- presented “prior monwealth bad act” 404(b). admis- objection, adoptive KRE ble under matter-of-right In his guilt. ap- sion of discretionary subsequently granted We argued any exchange peal, Appellee review. privi- Waldrop between himself as a communication be- leged “confidential Analysis II. person clergyman tween advis- Bad Acts Evidence professional spiritual character as A. Prior or.” challenges The Commonwealth privi- rejected religious claim of *4 conclusion that evidence Appeals’ reversed, opining lege, but nevertheless of sex allegedly of another similar incident the that the admission of evidence violated niece, by Appellee against ual his abuse privilege Fifth Appellee’s Amendment S.B., The Commonwealth ar was error. against self-incrimination. evidence, which included the gues that this to relating In addition to evidence the indi of and several other testimony S.B. H.S., of there alleged abuse J.R. and was viduals, admitted that properly and at testimony also a substantial amount of it in assess jury the was free to consider relating allegation trial to an earlier of ing guilt. Appellee contends against niece S.B. In abuse error, that of evidence was admission the alleged S.B. had that justify to of his and is sufficient reversal inappropriately during a touched her agree Appellee and conviction. We camping to the Land Between the trip Ap affirm the Court of the decision of Trigg County. Lakes area in recreational peals. eight years old at the time of the S.B. trial Appeals held that the Court Although allegations incident. S.B.’s failing in to court its discretion abused investigated presented Trigg to a pri- of Appellee’s alleged evidence exclude County Jury, Appellee Grand was not in- gatekeeping pursuant or bad acts to Appeals, dicted. As noted the Court Citing KRE 403. Barnett function under questions significant there were as the (Ky. S.W.2d 98 statements, reliability of S.B.’s not 1998), court factors recounted three that the girl’s least which was fact by the court that must be considered trial light during came to bitter admissibility evaluating the evidence custody between mother and dispute S.B.’s probative under KRE 403: “the worth father, her brother. addi- evidence, probability the evi- tion, that, Appeals stated prejudice, cause dence will undue that she “S.B. testified could remem- substantially effects whether the harmful her alleged ber the events probative worth.” Id. at outweigh the by [Appellee]. sexual abuse She theorized factor, Appeals As to the first the Court may only have been a event probative value of “[t]he stated that may dream that she have been told is, best, testimony questionable,” say Ultimately someone else.” what noted deficiencies the evidence several Appeals the Court of concluded evi- The Court of presented. was more dence S.B.’s abuse unfairly also the evidence was should have held prejudicial probative than “unnecessarily and prejudicial because by the trial court under been excluded conclu- unreasonably jury Alternatively, Ap- [led] KRE 403. the Court of [Appellee’s] sion that against actions H.S. In prior decisions we cau have and J.R. were n conformity’ with his tioned ac- that because of the highly-prejudi opinion tions S.B.” The cial concluded nature of of a evidence defendant’s acts, that the probativeness, relative lack of bad cou- pled with the high likelihood of prej- unfair 404(b) always interpreted has been udice should compelled have the trial court as exclusionary nature. It well- is a to exclude concerning S.B.’s alle- known fundamental rule that evidence gations. that a defendant on trial had committed other offenses is never admissible unless While we find no fault with the Court of it comes within certain exceptions, which Appeals’ description of the trial court’s are well-defined the rule For itself. responsibility under KRE we disagree reason, courts apply trial must that the trial court’s failure to undertake cautiously, eye rule with an towards analysis primary was the flaw in its eliminating evidence which is relevant reasoning. Instead, affirm we the Court only proof of an propensity accused’s Appeals’ holding alternate' that the trial type commit a certain of crime. correctly court failed to decide prelimi- *5 Commonwealth, 882, Bell v. 875 S.W.2d nary admissibility, namely, issue of wheth- (internal (Ky.1994) 889 citation quota- er evidence of qualified S.B.’s omitted) Furthermore, tion marks we have an exception as to our rule the noted: admissibility of prior bad acts. prove order to the elements of a 404(b) provides general rule, the subsequent by offense mo- evidence of well as as a excep- non-exhaustive list of operandi, dus the facts the
tions: prior strikingly misconduct must be so crimes, Evidence of wrongs, other or charged similar to the offense as to cre- is not prove acts admissible to the char- (1) probability ate a reasonable that the person acter of a order show action acts per- were committed the same in conformity may, It therewith. howevr son, the accompa- acts were and/or er, be admissible: not, nied the same mens rea. If then (1) If offered for other purpose, some prior the proves evidence of misconduct motive, proof such as opportunity, only disposition a criminal inad- and is intent, preparation, plan, knowledge, missible.
identity, or absence mistake or acci- English, Commonwealth v. 993 S.W.2d .... dent 941, (Ky.1999) (citing 945 Billings v. Com- monwealth, 890, Here, (Ky.1992); 891 the sought Commonwealth to intro- Commonwealth, Adcock v. 702 440 S.W.2d duce evidence of earlier allegations S.B.’s (Ky.1986)). way, another Stated proof Appellee’s as operandi, modus ar- guing that the commonality evidence admissible for it is not the of the crimes or one more of the “other purposes” commonality out- but the of the facts.consti- 404(b)(1). in KRE Specifically, tuting lined a the crimes demonstrates Commonwealth and the argued, operandi. Although trial court modus it is not re- agreed, prior quired “the bad act all the facts be identical in similarity sufficient present respects, [had] to the “evidence other acts of sexu- allegations, proof to be al admissible show deviance ... must be so similar to motive, intent, plan, absence of crime on trial as constitute so-called and/or or signature mistake accident.” crime.”
71 Commonwealth, incident of setting ular which each Dickerson S.W.3d occurred, it always happened under (Ky.2005) (quoting Rearick v. abuse when others that the cover of darkness (Ky. 1993)). objected asleep or might have either inattentive. argues that
The Commonwealth arguments to demon- recount these We more by applying erred scenariоs, given two factual strate demanding of review than was standard attorneys on each can invari- clever side proving mo- appropriate since long and infer- ably muster lists facts for dus in this was offered operandi case similarities and dif- supporting ences both 404(b) exceptions one of the KRE other prior acts and between the bad ferences But proof Appellee’s identity. than as inevitable, allegations. It present is argument ignores our recent cases prior when the act amounts to particularly subject generally no recognize which offense, charged an earlier violation such We held that even distinction. have be some basic similarities that there will acts when bad evidence that estab- prior bad act and new between the is operandi pur- lishes modus offered for a Again, pre- we have criminal conduct. identity, real pose prove other than to “the noted, viously question is whether the method of commonality is the crimes not the other commission crime crimes commonality of facts consti- but unique so similar and so as to indicate tuting crimes that demonstrates probability reasonable crimes Although it is not re- operandi. modus person.” were committed the same the facts be in all quired that identical Dickerson, (quoting VIAS.W.3d at 468-69 *6 of of respects, “evidence other acts sexu- Adcock ... al must be so similar to the deviance 443 (Ky.1986)). crime to constitute a so-called on trial as case, Turning to facts in the the signature crime.” Appeals noted Court of several dissimilari- Dickerson, Ultimately, ties between the circumstances of S.B.’s must demonstrate that the Commonwealth alleged assault and J.R. H.S. those of the commonality there is factual between noted, The among Court of other charged conduct that prior bad act and the that J.R. and were things, signifi- H.S. simultaneously peculiar or is similar and so the of cantly older than S.B. was at time probabil- distinct that there is reasonable assaults; the a fam- claimed that S.B. was ity that two crimes were committed the member, ily girls the where other were Notwithstanding the individual. the same al- Appellee; not related and that the of- lists of facts inferences competing very leged incidents occurred in different party, nothing there is fered either private family camping trip settings —a of this which demonstrates the record case youth many group versus functions requisite striking similarity the between surprisingly, participants. Not the Com- involving S.B. and that involv- the incident mоnwealth draws different inferences ing J.R. H.S. facts, noting regardless these Finally, we must consider whether any family relationship, Appellee had been girl; pursu trial entrusted with the care of each court’s error harmless pre ant to 9.24. The Commonwealth regardless specific ages, of their each RCr re witnesses who testified girls age was a female under the sented several consent; regardless allegations and the evidence partic- garding and that of the S.B.’s was used as part Adoptive a crucial of the Common- B. Admission and theory wealth’s Ap- case. led This the Fifth Amendment pellee present severаl who witnesses In addition to discussion of the extensively testified subject, pre- evidence, bad acts Ap sumably perceived damage because peals reversal, noted ground another for of the regarding allega- S.B.’s namely, testimony Greg Wal- tions. Among these witnesses were S.B.’s drop regarding a confrontation with Appel- mother, Buford Tonya Weddington; Ap- lee was inadmissible as evidence of an Buford; pellee’s mother, Geraldine adoptive admission. discussion Our of this Appellee’s wife, Collette Buford. is superfluous given matter somewhat our also testified about the earlier conclusion as to the prior bad acts evi all, relationship and his with S.B. In more dence, nonetheless, we address the merits than one third witnesses the case issue likely because it is to recur at testimony offered regarding allega- S.B.’s retrial. tions. however,
Perhaps damaging, most were The Court of Appeals correctly re the Commonwealth’s the in- references to jected the claim religious privilege, a cident regarding closing argument. S.B. fact acknowledges in his At point, one referring while to the 1997 It brief. is clear from the circumstances incident, the Commonwealth remarked exchange between the two got that “[Apрellee] away with Al- it.” men that details of the confrontation were though immediately counsel defense ob- privileged simply Waldrop because jected remark, to this judge’s admoni- “For a clergy. member communi tion to jury arguably worsened the be privilege cation to covered under this stated, situation. judge “Ladies and must be communicated to member of the Gentlemen, charges, as far as those earlier when clergy person acting as a brought which—that Mr. spiritual advisor and the information is not Buford, up he was not indicted. That’s anyone to be meant transferred else.” *7 you to you determine whether believe that v. Sanborn got he away something with or whether he (Ky.1994). Waldrop simply was was guilty not charges.” of those After acting not as spiritual a advisor when he admonition, prosecution resumed Appellee. confronted argument, its point, try- at one and while However, of Appeals the Court held ing to explain Appellee’s strange behavior evidence have been should exclud- charges, after the of revelation the new ed violation of Appellee’s privilege as a speculated mind, his of saying, as to state self-incrimination, guaranteed as justice. “Now he’s face he going to Whilе by both the Fifth Amendment Unit- may unpunished have been for the June ed States and Section niece, Constitution Eleven sexual he molestation Kentucky’s Constitution. The Court of knows that he is to going now to have face justice.” Appeals sponte raised this sua The issue and regarding S.B. it pervasive justification a offered as the recurring and was theme of sole for ex- prosecution’s testimony. closing argument. cluding Waldrop’s We This rea- however, say cannot soning faulty, that its admission not vio- is and did we decline late rights, substantial therefore to reverse a conviction as result it was not error. harmless RCr 9.24. of this error. contrast, Appellee’s confrontation Appel- In testimony at issue concerned
The way analogous citi- in no private Waldrop with another is lee’s interaction with of its government nor one faced the defendant Combs. zen—neither the situation any at in the point colleague was involved who agents friend Waldrop Appellee was con- exchange. simply, Put at Appellee, with try speak decided over colleague fronted a friend consequence of their part, least as sexual troubling allegations improper ultimate- relationship. Although Waldrop certainly Appel- bеhavior. While was on of the Commonwealth ly testified behalf prerogative to refuse to discuss lee’s jury grand trial and the during both the Waldrop, the Fifth Amend- matter with suggesting nothing there is proceedings, this fact ment cannot be used shield or in cooperation on he acted behalf pro- jury from the because constitutional con- government day on the he against self-incrimination are tections Appellee. fronted state action. triggered absent in this some The case is issue grounds, In on these reversing Appel- the fact that complicated by what primarily relied Court Waldrop’s face of (6th silencе in the lee’s 205 F.3d Cir. Coyle, Combs by the Com presented 2000), questioning petition for federal which decided adoptive as an admission of “a monwealth relief and held the use habeas ad adoptive at So-called as substan- trial. pre-arrest defendant’s silence exception Fifth as guilt recognized violate[d] tive evidence of missions against self-incrim- privilege Amendment’s rule at common law hearsay to the Id. The reasoned ination.” at 283. our evi recognized since have been that, in a pre-arrest setting 801A(b)(2) “in a as well states rules. As dence post-arrest setting, poten- it is clear that a part: in relevant provide tial defendant’s comments could by the hear- A statement is not excluded might in a damaging evidence that be used rule, is though declarant say even prosecution; privilege criminal should witness, if the as a statement available apply.” Removed from the con- thus Id. against party is: offered case, text of court’s statements might arguably support the conclusions the facts Appeals.
the Court However party A of which the statement easily distinguished in Combs are adoption or belief has manifested an Combs, presented here. the de- those truth .... by police had apprehended fendаnt been admis- adoptive rule also embraces *8 and, had shooting though of a he scene silence, is, adoption that through sions Mirandized, formally arrested or not been in the face “statements through silence He questioned the incident. was about normally evoke denial that would questions, telling police, refused answer Lawson, The G. if Robert party untrue.” trial, my lawyer.” “Talk to At the defen- Kentucky Law Handbook Evidence speak presented dant’s refusal to (4th ed.2003) (footnote 8.20[4], § at 595 guilt. substantive his omitted). fact, ad- adoptive citations pre-arrest held the defendant’s Court through “[m]ore silence are missions quеstioning by in law silence the face adoptive than admissions prominent pro- personnel enforcement within conduct_” Id. at Howev- through and was tection of the Fifth Amendment er, therefore inadmissible.
74
[sjeveral conditions must be satisfied be-
A
entitled,
stand.
State is
in such
fore a statement can be attributed to a
situations, to leave to the judge
jury
party because of silence. A statement
under its own rules of evidence the resolu-
may not be admitted
adoptive
as an
tion of the extent to
postarrest
which
si-
admission unless it is established that
may
lence
be
impeach
deemed to
a crimi-
party
heard and understood the
nal
testimony.”);
defendant’s own
Jenkins
statement and remained silent. Addi-
Anderson,
231,
2124,
447 U.S.
100 S.Ct.
tionally, a statement
not
admissible if
65 L.Ed.2d
(holding
86
that where
prevailed
conditions that
at the time of no Miranda warnings
given
and it
deprived
statement
party
of was clear that the circumstances did not
freedom to act or speak with reference
them,
require
process
neither due
nor the
to it.
privilege against self-incrimination forbids
(4th ed.2003) (footnote
Id. at 595
citations
impeachment of a
exculpatory
defendant’s
omitted); see also Marshall v. Common-
testimony on the
basis
his silence
wealth,
513,
(Ky.2001)
S.W.3d
arrest).
(“When incriminating stаtements are made
Moreover, we have held “that Section
presence
of an accused under cir-
Eleven of the
Kentucky
Constitution of
cumstances that
normally
would
call for
and the Fifth Amendment to the Constitu-
statements,
his denial of the
and it is clear
tion of the United States are coextensive
the accused understood the state-
provide
protections
identical
ments, yet
them,
did not contradict
self-incrimination. State action is indis-
tacit,
statements
are admissible as
pensable.”
Cooper,
Commonwealth v.
admissions.”).
adoptive
Appellee does not
75,
added).
(Ky.1995)
(emphasis
аrgue
Waldrop’s
description of their
Although Cooper concerned the admissibil-
inaccurate,
confrontation was
nor does he
ity of an employee’s statement and confes-
argue that
satisfy
the incident failed
any
sion
allegedly
that had
been coerced
requisite
conditions mentioned
employer,
see no reason that
logic
we
Rather,
above.
he repeats the contention
apply
would not
to this situation as well.
of Appeals
any
Court
negative
noted,
As
we have
does not dis-
jury
inference that the
permitted
pute the trial court’s determination
draw from
his silencе
rights
violates his
his confrontation
Waldrop
under
Fifth
met all the
Amendment.
prerequisites
for an adoptive admission
While the United States Supreme silence,
through
and we have found no
has
yet
decided a
specific
case
question
Likewise,
reason to
finding.
admissibility
context —the
adoptive
predecessor
our
court noted that such ad-
admission
pre-arrest
silence
set-
missions “derive
competency
their
ting
approved
has
the use of a criminal
—it
theory
upon
principle
the broad
defendant’s silence to establish an adverse
that the statements were impliedly ratified
inference
certain limited situations.
adopted by
the accused as his
See,
own and
Weir,
e.g., Fletcher v.
455 U.S.
a tacit admission
part
constituted
on.his
1309, 1312,
102 S.Ct.
75 However, I take issue the issue. Waldrop, to insofar as decided respond failure to admissions, adoptive the of admission with discussion jury adoptive the considers it A(b)(2). exceptions the to all silence, KRE 801 Of quality has an assertive through rule, my judgment, none is hearsay of statement the not unlike that the is ambigui- pregnant with more unreliable Cooper. As we employee the coerced theory adoptive admissions. case, privilege ty than Appellee’s held is one who admissions justify adoptive not behind against does self-incrimination deny guilt im- wrongly accused will suppression of evidence because denial, mediately, of upon his failure no in evok- there state аction involved rather, may be introduced re- evidence of silence ing response, or lack of presup- Such view such, guilt. of evidence of the Court sponse. As we reverse simi- beings respond that all human poses insofar as it conclud- Appeals issue I do not stress of accusation. Waldrop’s larly testi- the admission ed that true; my conclu- that to be hence believe mony amounted to a violation is often unreliable. sion that such evidence privilege self-incrimination. A(b)(2) has recognize I that KRE 801 III. Conclusion adoptive interpreted to embrace ad- been reasons, For foregoing decision is in- through silence. “Silence missions of the is affirmed and the innocent, If reaction ferred assent. judgment of the McCracken Circuit Court may rationally expected be declaration is reversed. tame him rather than a submission.”1 recognized that has si- Professor Lawson LAMBERT, C.J.; COOPER is never face of a statement lence JOHNSTONE, JJ., concur. that courts ambiguity and noted free urged caution in LAMBERT, C.J., have also and commentators concurs through silence.2 the use of admissions separate opinion. overruling suggest I our do While GRAVES, J., by separate dissents issue, powerful of the on this because cases opinion in which SCOTT and еvidence, and the dubious nature such WINTERSHEIMER, JJ., join. it, reliability judges trial associated LAMBERT, Concurring Chief Justice. any possible guard against abuse should admissibility of evidence hold the such I IIA part While concur with exacting standards. opinion, separately I majority write adoptive ad- comment on the treatment of GRAVES, Dissenting Justice. part IIB.
missions in part I A of Respectfully, dissent I that introduction of the evidence agree explained majority opinion. As he was con- silence when may majority, operandi of modus does not amount to by Waldrop fronted the elements of subse- prove used to violation of the Fifth Amendment be if facts offense quent of the United States or Sec- Constitution “strikingly so similar Kentucky. misconduct are tion 11 of the Constitution extent, a rea- correctly charged offense as create majority has to the To that LAWSON, Ky. THE KENTUCKY ROBERT G. 2. Griffith 8.20(4), § LAW HANDBOOK (1933). EVIDENCE ed.2003) (4th *10 76 (1) probability therefore, regard,
sonable the acts were and I would reverse committed person, same and affirm and/or were accompanied the acts the same conviction. rea.” English,
mens Commonwealth v. 941, (Ky.1999). SCOTT, WINTERSHEIMER, JJ., 993 S.W.2d The “strikingly similar” does not requirement join this dissent. the facts in all
necessitate to be identical Commonwealth, respects. Dickerson v. 451, (Ky.2005). case, prior bad acts was of did, fact, prove fered that the сrimes (the delicti) corpus occur demonstrat ing operandi. a modus id. at 468-69. See are of fact There numerous similarities Sr., Appellant, R. Dennis GREENE
surrounding charged of sexu- instances v. prior al abuse and S.B.’s bad acts testimo- ny. All three of the victims were females Kentucky, COMMONWEALTH of age under of consent. All the acts Appellee. during “outing”
were committed an No. 2004-SC-000046-MR. sort, sleep some while the victims went to next to them. night lying Kentucky. Supreme Court of Although to Appellee S.B. was related 18, May 2006. not, J.R. where and H.S. were all three victims were close to and were in Rehearing Aug. Denied vulnerability position of trust and to him. facts
The differ, majority also abuse and as the notes, attorneys will on each side invari-
ably produce lists of similarities dis- prior similarities between the acts and bad However, is the trial present facts. weigh court’s function to and evaluate ruling, facts making these when ruling this Court should not disturb such absent abuse of discretion. Matthews (Ky. 2005). In weighing the similarities abuse, between the instances of
differences court the trial did not abuse its discretion Dickerson, admitting the evidence. Cf. (Evidence at 468 act of supra, of a sodomy was inadmissible victim where testify any constituting
“did facts offenses,” not even tes- the sexual and did occurred). tify where the acts in this trial court is entitled to deference