*1 ROBEY, Appellant, Donald Edward Kentucky,
COMMONWEALTH of
Appellee.
No. 94-SC-881-MR.
Supreme Kentucky. Court of 27,
Feb. 1997.
Rehearing May Denied *2 21,1978, Robey pleaded
On Dеcember
had
raping
to
another woman. That victim
present
testified at the
trial that she awak-
wearing
and found a man next to her
ened
holding
ski mask and
a knife to her throat.
five-year-old daughter
asleep
Her
next
said,
you
to her. The man
“Do
understand—
said,
you
your daughter.”
“yes”
it’s
She
and
he took her
the next room where he
stomach,
laid her
her
up
on
tied her with her
raped
bathrobe
He
and
her.
then cut her
bonds,
counting,
told her to start
and left.
Robey
relationship
testified about his
with
that she invited him into her
apartment,
they
and that
had consensual re-
evening.
lations that
returned a
guilty.
verdict of
I. PRIOR ACTS
Losavio, Louisville,
Michael M.
Appel-
for
Robey contends that the trial court
lant.
admitting
erred
evidence of acts commit
eаrlier,
years
ted
him sixteen
such as the
Chandler, III,
General,
A.B.
Attorney
Hon.
rape of another woman and threats to a
Perry
Ryan,
General,
Attorney
T.
Assistant
irrelevant,
child. He claims these acts were
Frankfort,
Appellee.
remote,
highly prejudicial.
and
LEVIN, Special
trial,
JAMES
Justice.
Prior to the
filed a motion
prohibit
limine to
the Commonwealth from
appeal
judgment
This
is from a
based on a
introducing
prior
testimony.
victim’s
jury verdict which convicted Donald Edward
trial,
During
Robey again objected
to the
first-degree rape, first-degree
bur-
testimony. The record
trial
reveals
glary
first-degree persistent
and as a
felony
extremely
court was
concerned about
offender. He is
imprison-
sentenced to life
prejudicial
type
tеstimony.
effect of this
ment.
problem
court noted the
of remoteness
The victim
Robey,
testified that she knew
reluctantly
Robey’s objection,
and
overruled
neighbor,
and had
him spend
invited
permitting
previous rape
victim
night on a
apartment.
couch
Howev-
Robey’s
about the events that led to
er, Robey
offer,
declined her
saying he would
conviction sixteen
earlier.
with a friend and
The Commonwealth contended that the ev-
then left the
evening,
Later that
prior
idence of the
act was so similar in
the victim awakened with a man in dark
nature to the
act that it established a
clothing
gray
and a
ski mask at the side of
pattern or scheme and should be admitted
holding
her bed
a red filet knife to her
since it
relates
issue of consent and
man,
recog-
throat. The
whose voice she
identity.
according to the Common-
Robey’s,
nized as
had her roll on her stomach
wealth,
similarity
indicated a reasonable
pants.
and take off her
The man sat on her
probability that the crimes were committed
her,
legs, put
lubricant on
person.
the same
forty
He then
her to
told
count to
and left.
Testimоny regarding
Billings
a statement she made
police
to her friend and to
was admitted over
we stated that evidence of
objection.
being
Evidence was also introduced that
criminal conduct other than that
tried
genetic
semen
only
probative
found on her had a
match with
admissible
issue
disposi-
of character or criminal
tion,
error,
if its
value on the
cial and constituted reversible
violat-
outweighs
prejudice
ing Robey’s right
specif-
issue
the unfair
with
to a fair trial for the
respect
Any
to character.
Inasmuch as
ic crime for which he was accused.
jury may
admitted he had sex
inclination the
have had to believe
voice,
and she
version of the events as consensual
identity
witness
identified his
destroyed
was not an issue.
when evidence of the
The issue of consent was
*3
essentially
provides
conviction came in. KRE
swearing
403
contest between the
may
for the exclusion of evidence which
be
witness and
unduly prejudicial.
relevant but which is
We have held that evidence of inde
prior
certainly
The
conviction here
satisfies
pendent sexual acts between the accused and
prejudice requirement.
the undue
persons other than the
if similar to
concept
This
principle
is mandated
time,
charged
the act
and not too remote in
of fundamental fairness. As this Court has
intent, motive,
are admissible to show
long held:
Commonwealth,
plan.
common
Pendleton v.
Ultimate
mandates that an ac-
fairness
Ky.,
(1985);
which she had nо to reflect crime for which addition substantive Third, or fabricate the statement. the state- being charged (rape), lawfully he is when he trustworthy ment was because the stress of enters the victim’s to commit her nervous statement stilled her reflective (rape). crime the victim faculties and removed her control so that her first-degree burglary elements spontaneоus utterance was a and sincere re- *4 511.020(1) set out in KRS are as follows: sponse percep- to the actual sensations and produced by rape. person burglary tions the A is of in the first when, degree with the intent to commit a Although Robey complains that the vic- crime, knowingly he enters or remains un- tim’s friend had calmed her down before she lawfully building,.... in a incident, told her аbout the the victim was still under the stress of nervous excitement. 511.090(1) KRS states: tape The of the 911 call reflects that even person unlawfully” A “enters or remains in friend, spoke after she with her she was still upon premises privileged or when he is not hysterical hardly speak. able to The to do so. licensed correctly permitted trial court the friend to Although burglary the statutе indicates testify as to the that statements she made person property that a who enters under during telephone the conversation after the privilege may still commit the offense of bur- rape. glary property beyond if he remains on the privilege, that the fact remains that a crime
III. DIRECTED VERDICT ON against property an essential element of BURGLARY CHARGE burglary. Robеy contends that he was entitled In Tribbett v. to a acquittal directed verdict of on the (1978), the defendant was charge burglary in the first be lawfully premises admitted to the and was permission cause he had to be inside the involved the death of the invitee. He The evidence at trial subsequently premises remained on the to gave Robey permission that the victim to possеssions. “make off’ with the invitee’s apartment come sleep inside her to on the We held that inasmuch as the defendant was couch. declined and said he would licensee, upon a mere that the death of the night the with a friend. licensor, ceased, privilege the license and the However, placed pillow the victim and blan Therefore, premisеs to be ceased. ket on the couch for She left the when he remained to “make off’ with the apartment door to her unlocked so he could possessions, he licensor’s remained unlawful- spend let himself should he decide to ly meaning within the stat- Robey, there. testified that She whom Commentary ute. to 511.020. Howev- KRS voice, by she identified his entered but made er, necessary the essential element Instead, sleep no effort to on the couch. burglary offense was not met at the death of forcibly raped entered her bedroom and the licensor. It was the failure to leave and permission testified he had to enter subsequent property offense and that the sex was consen triggered gravamen that the offense. sual. court, noting Hedges the official commen- tary to provides KRS S11.020 which under a defendant was “any person order, property privi- protective who enters under domestic violence secured wife, estranged forbidding whole, his him from under the evidence as it [I]f
disposing damaging property. their clearly After be unreasonable for a to find permitted apartment, she him to enter their guilt, only then is the defendant entitled to window, diving he saw a man out the acquittal. a directed verdict of proceeded destroy property. to their injured. wife was not The defendant was DNA IV. EVIDENCE degree. convicted of in the second Robey further contends that it was We reversed and ruled that the defendant error to admit the DNA test results which was entitled to a directed verdict on the proved he had sexual intercourse burglary charge. We held that misconduct witness. The trial deter rightfully one should not Stacy qualified mined that Warnecke was burglary, convert that conduct into and that expert accordance with KRE the mere violation of a without intent DYO permitted extensively 702. She was dis crime, commit an impermis- opinion. cuss the basis of her The admissi support finding burglary. sible to We bility of DNA evidence be should determined further stated that even the defendant did case-by-case on a basis. Mitchell v. Com enter the with the intent to com- monwealth, mit a statute further prove Robey raped DNA test did not requires knowingly that the defendant either merely proved but that semen unlawfully enterеd or remained vagina inside the victim’s was from *5 ment, and that he then committed an inde- Robey. police admitted to the Since pendent satisfying crime the elements of the officers, audiotape on a recorded that was offense, burglary permission after his to be played jury, engaged for the that he in sexu property had been withdrawn. Since al intercоurse with the victim but claimed it no evidence was cited to show that the defen- consensual, during and admitted permission dant knew his to be in the having about sexual intercourse with the vic
ment had been withdrawn at the time he tim, there was no issue at the trial as to destroyed property, he was entitled to a engaged whether he in sexual intercourse directed verdict. Although wаs no need for with there case, In the the evidence intro- cumulative, testimony this and it was we do duced indicated that entered the not believe that the admission of the DNA apartment permission with and thereafter test was reversible error. v. Common Stiles raped the victim’s entered bedroom and her. wealth, (1978). There was no evidence to indicate that his judgment аnd remanded is reversed privilege to be in the had been opinion. for a trial new consistent with this prior to the he withdrawn time committed criminal act. Unlike the STEPHENS, C.J., and LAMBERT and Tribbett, Robey immediately facts in left the STUMBO, JJ., concur. property belonging and removed no victim. We must therefore conclude WINTERSHEIMER, J., dissents in a required that the elements to constitute the GRAVES, J., joins. separate opinion in which offense of the first were COOPER, J., separate dissents in a not met. opinion. Robey’s motion for a directed verdict on JOHNSTONE, J., burglary charge sitting. should have been sus- not as it been unreasonable tained would have Justice, COOPER, dissenting. him to find under the facts Hedges, agree respects dissenting I presented. supra, This Court all with I opinion set forth in of Justice restated standаrd Common- Wintersheimer. Benham, Ky. simply Appellant 186 add that even if had en- wealth v. 816 S.W.2d (1991), per- for in criminal tered the victim’s a directed verdict mission, privilege and the his “license ceased cases: premises lapsed” to be when crimes occurred on Lucia Avenue and within rape formed the intention to his host. Trib one block of that street. 662, bett v. 561 S.W.2d The evidence in this сase was relevant (1978); McCarthy see also v. Common because the issue was whether
wealth,
Ky., 867
I
do
had
the victim or whether she had
Tribbett,
interpret
supra,
narrowly
not
as
consented. The evidence demonstrated that
majority.
does the
The defendant in Tribbett Robey, by committing a similar act at an
committed the offense of
when he
date,
previous
earlier
had forced a
victim to
formed the intent to kill his host.
It
atwas
have sexual intercourse. The evidence tend-
proper
moment that he remained on the
ed to refute
claim that the victim in
ty with the intent to commit a crime. KRS this case had consented and was therefore
511.020(1).
probative.
relevant and
The evidence was not too
remote
time.
WINTERSHEIMER, Justice, dissenting.
In Diehl v.
673 S.W.2d
respectfully
part
I must
dissent from that
this Court discussed remoteness
majority opinion
which reverses the
and held:
judgment
majority
of conviction. The
has
The determination as to whether
fel-
improperly substituted its view of the evi-
ony convictions are too remote in time to
judge.
dence for that of the trial
The chal-
impeach
testimony
be used to
a witness’
lenged
signаture
evidence was that of a
rests
the sound discretion of the
within
nearly
crime
identical to the
involved
previously upheld
trial court.
have
We
here;
judge properly
rulings allowing
dating
convictions
from
grant a
directed verdict on the
ten to fifteen
trial
before
to be used
charge and admission of the DNA test re-
impeachment purposes.
sults
reversible error.
Here the trial
found
the two
judge properly
admitted evidence
crimes
so similar in nature that even if
were
*6
crime,
signature
of a
nearly identical to the
span
a
there was
of 16
between the
trial,
rape charge
Robey
here: Prior to the
two,
they
that
should be allowed into evi-
filed a
in
prohibit
motion
limine to
the Com-
Robey’s prior
dence.
conviction was not too
introducing
monwealth from
the
vic-
admissible,
remote to be
and there was no
trial,
testimony. During
tim’s
the
judge.
In
abuse of discretion
again objected
testimony,
but the trial
determining
admissibility of the
the
judge
objection.
overruled his
judge properly
considered the rele-
vance and balanced the
value
Evidence of other acts of sexual deviаnce
prejudicial
its
effect.
prove
offered to
the existence of a common
plan
scheme or
must be so similar to the
grant
judge properly
The trial
a
crime on trial as to constitute a so-called
burglary charge.
directed verdict on the
signature
Billings
crime.
v.
at trial was that the
evidence
(1992); Gray
mit a or re- enters Appellant, unlawfully building, mains and when effecting entry building or while in the Edward and Elena PUCOSSI therefrom, flight
in the immediate he or Pucossi, Appellees. participant another in the crime: (a) explosivеs deadly Is armed with or a No. 96-SC-0162-DG. weapon; or Supreme Kentucky. Court of (b) physical injury any person Causes crime; participant who is not a in the April (c) Uses or threatens the use of a dan- gerous against any person instrument participant
who is not the crime.
When entered the victim’s
ment, sofa, sleep he made no effort to
which permis- element of limited Instead, given by
sion the victim. he wore a
disguise forcibly raped and then the victim at point. Robey unlawfully
knife entered unlawfully
the bedroom and remained in the judge properly
victim’s
denied the motion directed verdict on burglary charge.
It was not error to admit the DNA test proved
results which had had
sexual intercourse with the victim. The trial determined, objection, without qualified
Warnecke was as an ex-
pert extensively and Warnecke discussed the opinion. Admissibility
basis of her of DNA case-by-case
evidence is determined aon ba-
sis. Mitchell v. *7 appeal, On the standard deciding review is whether in the admissi-
bility judge abused
his discretion. Mitchell
supra. Upon a careful review of the entire
record, did not abuse his
discretion.
I would affirm the conviction all re-
spects.
GRAVES, joins J. in this dissent.