*1 93,345 No. Prine, Kansas, v.
State Appellant. Appellee, John 1) (200 P.3d *2 Opinion filed 2009. January P.A., E. of McQueen, & Kerry McQueen, McQueen Sharp, McKinley, Dodge, Liberal, cause, firm, of C. of the argued Griffis, same was on Stephen for brief appellant. Stanton, cause, Thomas R. district E. and Keith deputy attorney, argued Schroeder, Kline, district and Phill were on the attorney, attorney brief general, for appellee. the court was delivered opinion Defendant Prine was convicted of rape, aggra- Beier, J.: John vated criminal indecent liberties with sodomy, aggravated child because of his conduct with a He 6-year-old girl. petitioned our review the Court of decision his con- Appeals affirming Prine, 93,345, victions in State v. No. filed opinion unpublished is- We K.S.A. 60-455 and 2006. address December sufficiency sues.
Factual and Procedural Background more discussion claim elaborate Prine’s sufficiency requires than be case ordinarily necessary. might troubling A.M.C., home her As E.K. was granddaughter, taking 6-year-old her that A.M.C. told from December kindergarten her. her in he should not have touched had touched ways “John” from came home A.M.C.’s who E.K. notified J.C., stepmother, to the An examination A.M.C. doctor. work and took immediately Prine to A.M.C. and had asked revealed no babysit injuries. J.C. he for the had her brother sister morning; babysat baby of A.M.C.’s father. Prine the best friend before. family That filed report. day, Sergeant Taylor police John J.C. *3 vide- Detective Bureau Police Hutchinson Department’s Juvenile truth asked A.M.C. about an interview A.M.C. Taylor otaped lies, and and A.M.C. indicated she understood the difference. Tay- and A.M.C. said lor about and bad talked touching, good touching A.M.C. able to her bad touches. was that identify always gave John knew a were She and understood that some private. body parts and a is her bottom on the chest. She described private part girl She to a on referred to her as her “front.” referred vagina penis a “front” too. as boy had “lots of times”
A.M.C. told that Prine touched her Taylor this her were She said when he was and babysitting parents gone. room; in the in the room the had dryer; laundry happened hving room; while her brother her and once playroom parents’ Prine and were A.M.C. said touched her between sister present. and his her with his his fingers, tummy. legs tongue, do when asked A.M.C. what Prine would with his fingers Taylor and he her A.M.C. her index would touch between took legs. mouth, them had licked to her like she middle finger, put up acting them, She said he and then them down between her swiped legs. said, “I and her A.M.C. licked his them between put fingers legs. said went inside that is. It’s bad touch.” She know what fingers and outside.
A.M.C. also that said Prine sometimes used his to pull fingers said, front her and would lick inside. She “I don’t know apart why that.” said he did She she had asked him he do stuff would why her, listen; that like and he would not she said he what thought fun he was was and funny. doing
A.M.C. also that on said once she was the floor with her lying on, bottom, clothes but with her down her and Prine pants past his her and between scooted her. She tummy put legs explained back, head, that she was on her her were over her almost legs apart, was her. When asked where exposed tummy touching John’s her, Prine’s was A.M.C. stood tummy touching up pointed out, her asked her if this was on inside or vagina. Taylor said, A.M.C. “I told the inside and outside.” you, Edwards, Steve a clinical social at worker Mental Horizon Center, Health who interviewed A.M.C. on December S.M., had been with Prine’s working many years 9-year-old a school Police S.M. in interviewed daughter, through program. late December and she stated that father her had often given her bad touches. She said she was little he when had sex with her. meant, asked naked; When what she said S.M. Prine would be her; he would at that he would remove her and that he yell pants; would set her on of him he She as bed. said she felt his top lay on her it, but he never did with and she penis vagina, anything saw it. times, never S.M. had this two or three thought happened was; but she did not old remember how she when she pressed, it was when she or 5. suggested The State Prine in four counts. The first three counts related to incidents A.M.C.: criminal *4 involving rape; aggravated and indecent liberties with child. A second sodomy; aggravated child, IV, count of indecent liberties with a Count aggravated based on his sexual abuse S.M. alleged against
At Prine’s the district a de- preliminary hearing, judge granted IV, fense motion to dismiss Count because there was no evidence the that of count had been commenced within prosecution years of the of the commission crime. Prine was over bound for trial on the first three counts. of other crimes or State moved to admit evidence
The wrongs The defense admission to K.S.A. 60-455. any opposed pursuant Prine made to sexual abuse evidence against allegations relating the The State evidence Prine’s half-sister. S.M. or argued by J.J.S., intent, facts of and absence the material was relevant to plan, prove 5- about or Each involved mistake accident. 6-years-old girl the two act of a sex without and simulation penis; penetration de- and cases involved oral of the digital sodomy penetration. value, it if the had that fense any probative responded allegations the were that was far allegations by potential prejudice; outweighed crimes; similarities that to the that not similar any enough that to sexual abuse and common did exist were many allegations; in time to be The district evidence was too remote probative. would admissible at trial decided that the evidence be judge intent, of mistake or accident. absence plan, trial, she testified the three events had At A.M.C. about previ- said that Prine her described to She Taylor. pushed pants ously front; down, her he and touched underwear licked his fingers, front, her his on her and “was just licking spread legs, put tongue and, was on the like some one time when she floor it dog”; off, air, her were her in the Prine pulled legs apart part pants shoulders, with his front touch- them over his and scooted her put room, in the her front. She said first event happened living ing room, room; room, and in in her laundry parents’ play room; and the third event second event in the living happened The first event lots room. happened living happened times, said, her were home. she almost that not every day parents also that no had told her to these She testified one say things; rather, she “it She further testified when really happened.” he he said Prine to and asked him did these asked why things, stop about him. said she told her it was A.M.C. funny grandmother did not these Prine because she want things happen anymore. with from her initial interview A.M.C.’s trial deviated testimony her She that Prine’s touched one testified fingers Taylor respect. outside, had than inside and outside which she rather with about Taylor. spoken *5 A.M.C.,
Edwards testified his initial interview with concerning in which she related the same incidents that she Prine involving had told earlier. had about She demonstrated Prine’s police licking manner, of his same and she had used fingers anatomically correct dolls to demonstrate where and how Prine had touched her. Edwards further testified that he had seen A.M.C. more than interview, a dozen times since her initial and she remained ex- that, consistent her disclosures. He also al- testified tremely A.M.C. had not a traumatic event such as though tornado, experienced fire, die, someone she exhibited seeing signs post- disorder, traumatic stress including recurring nightmares, sleep disturbance, and fear of Prine. exaggerated
Over a that, defense Edwards also testified before his objection, 2003, initial with A.M.C. in December he had meeting performed a sexual abuse evaluation on then S.M. S.M. told Ed- 8-year-old wards that bedroom, Prine would force her to into his would go on his and would force her to back on put honey private part, “get him.” She told Edwards defendant would at her when she laugh tried wash that had on her away honey gotten private part. Also over a defense S.M. testified that objection, 9-year-old Prine had touched her in a bad She testified that way. specifically Prine had taken her clothes off and on of her. She gotten top that, 4, testified when she 3 or was he on his put honey private on of her. He at her when she tried to part got top laughed wash off the that had on her. S.M. also said Prine honey gotten “smacked” her. that,
S.M.’s mother testified over December objection S.M. had told her she had been naked and defendant had laid her on of him. S.M. had asked her mother if that act was sex. top half-sister, Prine’s testified that Prine had sex-
J.J.S., 27-year-old abused her when lived same house in the 1980’s. ually they that, said when she 4 or 5 old and Specifically, years J.J.S. Prine was him; he forced her to sex oral he perform per- her; formed oral sex on he his between her put penis legs rubbed it on her and he his and middle vagina; put pointer fingers her inside after them his mouth. vagina wetting performed J.J.S. the same action that A.M.C. had to demonstrate. performed J.J.S. *6 once, had wit- two of her other half-brothers that also testified sex Prine. her oral on nessed performing that, he when was about 12 M.S., testified Prine’s stepbrother, half-sister, old, he saw his 5-or J.J.S., 6-year-old performing years sex on Prine. oral admitted, a 1993 also over district
The objection, police judge abuse. filed about Prine’s sexual had report J.J.S. brother, Prine, was the sole witness defendant’s other
Nick the Nick sexual denied ever the defense. witnessing any by presented Prine and acts between J.J.S. Denno, 368, 12 378 U.S. L. Ed. earlier v. Pursuant an Jackson (1964), the State also S. and 84 Ct. 1774 2d ruling, hearing who KBI evidence from introduced Ricky Atteberry, Special Agent to the con that Prine made statements testified voluntarily police 2004. In an interview on A.M.C.’s allegations January cerning interview, of sexual Prine denied A.M.C.’s that allegations general abuse, incidents he that three innocent but might explain suggested that, occasion, on he had one been her stories. He rough suggested and had her with one arm under with A.M.C. picked up housing that, summer, he and her crotch. He also said the previous during her had and swimsuit A.M.C. were the bottoms swimming side, she to one her and that had slid down moved exposing vagina, arm, his arm. On oc his thus her another vagina rubbing against casion, Prine was on his said he at looking computer pornography had A.M.C. came into the room. Because she butter when peanut face, licked and the on her he his thumb wiped jelly peanut off of her face. butter jelly A.M.C. did have a swimsuit at the testified that not place J.C. Prine the time frame about which testified. during that Prine had tried to black-
The State also introduced evidence him mail A.M.C.’s mother into charges dropping against father, husband, was to tell her A.M.C.’s threatening police from his stealing workplace. involvement in the case testified his Taylor
Finally, concerning initial with of the interview and his interview A.M.C. The videotape was not for the but the video included was played jury, tape on record appeal. instruction sexual jury limiting given evidence S.M. and read: abuse It “Evidence has involving J.J.S.
been admitted that the defendant committed tending crimes other than the crimes This evidence present charged. may be considered the defendant’s solely purpose proving intent, or absence mistake accident.” plan, deliberations, the asked the district court to “elab-
During jury orate on what constitutes If a or or penetration. finger fingers clitoris, touch does that constitute a tongue penetration labia, of the female or or if anatomy vaginal opening, simply clitoris, someone touches the would that constitute penetration?” The court reread Instructions responded directing jury No. 3 and 7. No. Instruction told No. to determine the jury *7 and to be each and witness to use its com- weight credibility given sense, mon and knowledge, experience evaluating testimony. Instruction No. 7 set out the elements of and sexual defined rape intercourse as of the female sex a penetration “any organ by finger or however is sufficient to con- object. any Any penetration, slight, stitute sexual intercourse.”
Two and Vz deliberations, hours after for tire initially retiring returned a of verdict each of the three counts. jury guilty At the district denied Prine’s motions for sentencing, judge judg- trial, of ment new and downward ar- Prine acquittal, departure. that he had been set because he had a romantic gued up rejected wife.,He mother, from A.M.C.’s his best friend’s then proposition the accused district of to be of fa- judge failing unfairly impartial, After the Prine advised to voring prosecution. judge “keep [himjself,” to Prine launched into a tirade of lan- abusive cussing that earned him counts of direct criminal guage eight contempt. Each count added a his consecutive months to sentence. on a
Based criminal of G score for a failure history prior felony conviction, child Prine a received 203-month sen- pay support tence for a 123-month sentence for criminal sod- rape; aggravated and a 61-month sentence indecent liberties omy; aggravated others, with a child. Each was consecutive to the as well to the as sentences. multiple contempt (1) There was Court of to the four issues
Prine Appeals: argued of his conviction of evidence insufficient support penetration of his evidence (2) erred the district admitting judge rape; erred in ad- (3) the district and with S.M. judge activities J.J.S.; mustache, matched which him with of mitting photograph (4) him; the district of erroneously judge A.M.C.’s description sentence. for a downward denied his departure request affirmed of of the Court A part panel Appeals’ majority claim, Prine, On the at 13. sufficiency dismissed slip op. part. that, court, the noted this before issues majority one of two not is assertion, actual Prine’s vagina penetration contrary intercourse, and sexual to establish “any penetration, required wrote: at 6-7. The is sufficient.” however majority Slip op. slight, is not nec- of the “[Pjenetration hymen rupturing vagina sufficient” to establish vulva or labia is of the essary; penetration and, 21-3501(1) K.S.A. at 6-7 intercourse. sexual (citing Slip op. [1998]). B.M.B., alia, In re inter evi- contained sufficient that the record concluded majority at the victim’svulva or least that “the defendant dence penetrated evidence, that, based on this labia with his lubricated fingers” found the defendant factfinder could have “a rational guilty rape Prine, at 7. doubt.” a reasonable slip op. beyond issue, out its standard set On the K.S.A. 60-455 majority the three material It noted that two of of discretion. review as abuse was admitted to abuse evidence factors the sexual prove— related con of intent —were mistake and the absence of presence Davidson, 31 Kan. 2d at cepts. Slip op. (citing *8 [2003]). 1078, 971 2, rev. denied 276 Kan. 65 P.3d Although Syl. ¶ him, he had denied A.M.C.’s Prine against allegations categorically The held for them. innocent offered majority explanations possible motive,” innocent “an inference of that when a defendant creates crime to the act similar evidence of a bad alleged sufficiently prior of the determination and material to becomes relevant guilt. juiy’s 406, 413, 886 Dotson, P.2d 256 Kan. at 9-10 (citing Slip op. [1989]; 268 Nunn, 768 P.2d [1994]; v. 244 Kan. 356 State 930, [2004]). 927, P.3d 1128 92 32 Kan. 2d State v. Kackley, App. of crimes true, that evidence the rule This was prior despite general is inadmissible to show intent when intent is obviously proved by Nunn, the mere of the act. at See Kan. 212. doing charged Moreover, observed, the when the facts aof act majority prior similar,” and an crime are the act is ad- alleged “strikingly prior that missible to demonstrate defendant had a plan employed Prine, distinct method of State at 10-11 operation. op. slip (citing v. [2004]). The Jones, majority said were there “a number of similarities” between the specific crime and the evidence of Prine’s behavior with S.M. and “All victims were 4-6 of when extremely young, years age, J.J.S.: Prine, the occurred.” abuse at 11. In both S.M.’s and slip op. cases, victims; A.M.C.’s the at defendant the in A.M.C.’s laughed cases, and defendant had licked his and rubbed them fingers J.J.S.’s on the victims’ areas. some . . difference . the genital “Despite defendant’s conduct was similar to demonstrate a sufficiently plan Therefore, or common the bad acts were relevant approach. and material demonstrate a or a common course conduct plan the at defendant.” 2d (citing Kackley, Slip op. 932). at that relevance, a determination of majority acknowledged
i.e., value, the existence of the existence of materi- probative issue, an actual formed the K.S.A. 60-455 anal- ality'to only part a district also must value ysis; judge weigh any probative against case, to the defendant. In this the held potential prejudice majority that value of evidence of Prine’s was intent probative slight denial, because of his but “the combined value general intent, bad acts evidence to an absence of mistake or acci- prove dent, and defend- plan outweighed potential prejudice ant.” at 11-12. The convinced” that op. Slip majority “firmly the district court did not abuse its discretion in admitting sexual abuse evidence under K.S.A. 60-455. at 12. Slip op. dissented,
Court of
Richard Greene
Appeals Judge
suggesting
that an
abuse
discretion standard
not
does
come into
on a
play
K.S.A. 60-455 issue
unless
until a
court determines
reviewing
“(1)
the evidence was relevant
one of the facts
spec-
60-455;
(2)
ified
K.S.A.
the fact
ais
being proven
disputed,
fact;
(3)
material
value of the evidence
probative
sought
*9
at 14
its
admitted
to be
Slip op.
potential prejudice.”
outweighs
dissent,
to the
(Greene,
According
application
J., dissenting).
conclu-
cited
majority required
opposite
by
precedent
was not admissible to
abuse evidence
sexual
sion:
at 14-15.
intent,
of mistake or accident.
or absence
Slip op.
plan,
sexual con-
on the
rule
Greene relied
general
Judge
criminal intent is obvi-
to show intent when
is inadmissible
duct
act.
at
the mere
of the charged
Slip op.
doing
ously proved
212;
413; Nunn,
Dotson,
Judge unless a defendant had offered an was not a basis for admissibility accident the criminal acts of mistake or alleged explanation Here, at 15. he the defendant did not the case. op. argued, Slip claim that touched A.M.C. “at the times he places accidentally an that he have but offered accidentally explanation may charged, at times and This does touched her other [not] place places. . at 15 Da- . . . mistake or accident. . .” Slip op. (citing dispute 379-83). vidson, 31 Kan. 2d at took issue with the be- Greene also similarity degree
Judge A.M.C. and those made S.M. tween the made by allegations view, the differences were marked. The sim- In his J.J.S. at the victims and Prine’s amusement ilarities—the relative age demonstrate modus their not op- degradation enough —were 15-17. 277 Kan. at erandi or at As Jones, plan. Slip op. “ was insufficient evidence Greene wrote: ‘[T]here simply Judge that could be to show a distinct method of presented operation “similar similar” or even considered “strikingly “signature” ” Prine, at 17. for K.S.A. 60-455 purposes.’ slip op. enough” held that reversal was nec- Greene would have ultimately Judge issue, the State’s case rested on the K.S.A. 60-455 because essary others, had told the victim’s what she testimony, entirely *10 the evidence of (Greene, sexual abuse. at 17-19 Slip op. J., dissenting).
KS.A. 60-455 Evidence Prior Sexual Abuse K.S.A. 60-455 provides: to K.S.A. 60-447 “Subject evidence that a committed a crime or civil person occasion, on a is inadmissible
wrong specified to his or her prove disposition commit crime or civil as the basis for an wrong inference that the com- person mitted another but, crime or civil on another occasion wrong specified subject K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove motive, some intent, other material fact including opportunity, preparation, plan, or absence of knowledge, identity mistake or accident.” State v. In 40, 194 287 Kan. (2008), P.3d 563 Vasquez, we review the current for admission of evidence of requirements crimes or civil under K.S.A. 60-455 and the standards of wrongs appellate review to each facet of the applicable relies on analysis. Vasquez Reid, our recent State v. decision in 186 P.3d (2008), 713 stating: “ K.S.A. 60-455 ‘[T]he several . . . analysis requires court [T]he must de- steps.
termine that
fact,
the evidence
motive,
is relevant to
a material
knowl-
e.g.,
The court
edge,
must also
identity.
determine that the material fact is dis-
the court
puted.
must
Additionally,
determine that the
value of the
probative
evidence
outweighs
potential
undue
producing
prejudice. Finally,
court must
instruction
give limiting
of the
informing
jury
specific purpose
for admission whenever 60-455 evidence comes in.’ [Citations omitted.]” Vasquez,
We observe in
that Reid refined and extended our ear-
Vasquez
in lier
39, 47-48,
282
56-57,
Kan.
ruling
144 P.3d
Gunby,
(2006):
“ “While
established that
Gunby
rules
be
evidentiary
either as a
may
applied
matter
discretion,
of law or in the exercise of the trial court’s
on the
depending
contours of the rule in
this
question,
determination
particular
occurs
“[o]nce
relevance is established.”
that evidence must relate
properly
dispute
one rule. Whether an issue
on those issues—are combined into
shed some light
is,
course,
substantive
determined
the
is
applicable
properly
dispute
law.’]).”
if either the
or
element’s standard is
materiality
probative
met,
dence is inadmissible. If both standards are
then the
court
appellate
proceeds
Reid,
next
60-455
established Gunby.’
to the
analysis
[K.S.A.]
step(s)
Kan. at 509.
60-455, i.e.,
was in issue at
under K.S.A.
whether the fact
“The second step
trial,
a de
standard. An
court is as
is
on
under
novo
capable
appeal
appellate
judged
whether a
fact was in
from a
issue
cold record. The third
discerning
particular
effect,
the district
value and
is
step,
judge’s weighing
probative
prejudicial
discretion,
Reid,
reviewed on
for abuse of
a more deferential standard. See
appeal
Intent
The State’s first basis for admission of evidence about Prine’s sexual abuse of S.M. and intent. We hold that it J.J.S. would not have been an abuse of discretion for the district judge relevance, to decide that the first the existence of component value, was satisfied on intent. The fact that Prine mo- probative lested other common young girls past, given today’s jurors’ crimes, of the of those who commit such understanding psychology “shed[sj some on the existence of intent in this case. actually light” context, In this we use the word “intent” in the broader sense of mind or mens rea the overall for of criminal guilty required proof behavior, rather than in the sense of the intent” particular “general intent” of certain crimes. In this “specific required proof case, Prine was with two intent un- general rape crimes— 21-3502 and criminal der K.S.A. under K.S.A. aggravated sodomy 21-3506—and a intent indecent liber- specific aggravated crime— ties with a child under K.S.A.21-3504. The elements of aggravated indecent liberties with a child include an “intent to arouse or satisfy offender, the sexual desires of either the child or the or both.” K.S.A. 21-3504. abstract,
At least in the sexual abuse of others Prine also by could, law, as a matter of the second of rele- satisfy component vance, Criminal intent is in dis- materiality. generally “properly criminal inde- pute” rape, aggravated sodomy, aggravated cent liberties with a child cases. for the State on the second of the going gets tougher part test, i.e., 60-455
K.S.A.
whether intent
inwas
issue at
actually
trial,
Prine’s
also
under a de novo standard. We
judged
appeal
that,
with
Greene
the record before us and the
agree
Judge
given
here,
nature of the behavior
intent was not ac
egregious
alleged
that,
in issue. It was
if the sexual abuse of
tually
simply given
her,
A.M.C. occurred as described
it was motivated
criminal
Rucker,
816, 825-26,
intent. See State v.
267 Kan.
728 need no further in our of whether there was error
We go analysis in the evidence of Prine’s sexual abuse of S.M. and admitting intent. There was. prove J.J.S.
Absence of Mistake or Accident
The State’s admission of the
sexual abuse evidence prove
absence of mistake or accident breaks down
the same manner
Indeed,
as its admission of the evidence to
intent.
the two
prove
bases for
of K.S.A. 60-455 evidence are
inter-
admission
largely
Plaskett,
995, 1020,
(2001)
twined. State v.
271 Kan.
Here, absence of mistake or accident was not issue actually in Prine’s trial. The State’s introduction of evidence about Prine’s his law enforcement that A.M.C. interview could hypothesis during have become confused certain other incidents of nonsexual by was insufficient to admission of evidence touching support contrary trial; the State. The did not inform Prine’s at hypothesis position his defense was a denial events categorical any alleged circumstances, took Under these the State could not place. open the door for itself to S.M. and on the stand to rebut an put J.J.S. innocent advanced Prine. The evidence it intro- explanation duced from his interview bore no to the defense relationship theory *14 of the case at trial. Admission of the sexual abuse evidence prior absence of mistake or accident was error. prove Plan
One of the avenues
which evidence of
crimes or
through
prior
civil
can be
or modus
wrongs
probative
plan
operandi satisfy-
—
relevance,
the first
an
to shed some
ing
component
ability
light
on a
Damewood,
contested fact—is
See State v.
245 Kan.
similarity.
676, 681-82,
(1989)
This court stated that rationale for “[t]he evidence of unrelated acts to show under admitting plan K.S.A. 60-455 is that the method of acts is so similar to that committing utilized in the case tried that it is reasonable being to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of and conduct operation utilized the defendant accomplish Damewood, crimes or acts. [Citations 245 Kan. omitted.]” at 682.
730 crimes or acts is has held evidence of line of cases Another direct or causal con- when there is some to show admissible plan the crimes 245 conduct and between the earlier nection charged. v. at 682-83 State Kan. Gourley, (citing 4, 565 [1978]; State v. P.2d Syl. ¶ Marquez, [1977]). P.2d 245 for admis- recited these two theories
This court has consistently
but our formulation
60-455 evidence to
sion of K.S.A.
plan,
has
under the first
of the standard of
theory
similarity employed
from case to case.
varied somewhat
(2004),
which
Kan.
upon
Jones,
case,
relied in this
and dissent
both the Court
majority
Appeals
*15
the
the
we have encountered
demonstrates
describing
difficulty
case, de-
in a child sexual abuse case. In that
necessary similarity
after a
had been
from
fendant Charlie
prison
Jones, Jr.,
paroled
and moved in
indecent liberties with a child. He met
conviction of
M.W.,
9
old.
with L.W. and her
who was then
years
daughter,
1996,
sex with
When
turned 12 in
defendant
M.W.
began having
M.W.
L.W. about it in
her. This
did not cease after
told
activity
1998,
until 2001.
and it continued at least weekly
According
M.W.,
cared for her
much. She
told her he loved and
very
Jones
1999,
In
natural
testified she still loved him
much.
very
Jones’
who was
15 months
from a
marriage, S.J.,
just
daughter
previous
M.W.,
in,
al-
older than
moved in.
after
moved
Shordy
S.J.
Jones
“initiation” with
orchestrated a
sexual “ritual” or
legedly
group
M.W.,
L.W.,
women wore “colors.”
which the
S.J.,
during
woman,
had sex with each
while
penetrating
digitally
Jones
Thereafter,
others, and
them all that he loved them.
also
told
Jones
a week until she moved
sex with
once or twice
began having
S.J.
2001,
2001 after
18. In November
out
July
turning
Jones
after
counts for his sexual abuse
M.W.
eight
S.J.
denied
the sordid details of the
life
to unfold.
girls’
began
Jones
have
of a
that would
the abuse and offered evidence
back injury
sex incident.
alleged group
prevented
trial,
to introduce evi-
At
the district court
the State
permitted
with a child
of indecent liberties
conviction
dence
Jones’
case,
L.D.,
her
victim in
earlier
testified that
prove plan.
mother had been married to
When L.D. was 8 or 9 years
Jones.
old,
clothes,
her
off her
began molesting
by taking
touching
Jones
her with his hands and
himself on her.
penis,
rubbing
Jones
but never achieved sexual intercourse with L.D. L.D.
attempted
masturbate,
testified
would
fondle her
and breast ar-
vagina
Jones
eas, and tell her that he loved her. He also wanted her to
she
say
loved him. These
alone;
incidents
when
were
always happened
they
had told her
secret;
and he
keep
activity
pleaded
Jones
when she
the sexual abuse. L.D.’s
guilty
eventually reported
activities;
mother never
and there was no talk
participated
”
“colors, rituals,
values.’
senting). (2004), 32 Kan. 2d
In State v. Kackley, App. and dissent the Court of also relied on both majority Appeals case, with same in this the Court of problem. Appeals grappled was with two counts Defendant Leslie aggra- Kacldey charged A.G.; conduct with at indecent liberties with a child for his vated trial, admitted evidence of defendant’s no- the district court conduct C.D. As set out contest panel, involving pleas (ii) (i) were the similarities were: A.G. and C.D. 10-year-old girls; (iii) access to the children victims were known to both Kacldey; (iv) with the children’s was parents; gained through friendship reverse; (v) than the had the children touch him rather Kackley time in- were in the home at the one or more siblings present cidents; (vi) each sexual contact Kackley began by placing (i) his The dissimilarities were: child’s hand on Although penis. A.G., with C.D.’s had no connection with he lived Kacldey family role; (ii) adults were and filled family quasi-parental present A.G., with whereas no adults the house at the time of the incident C.D.; (iii) were for the incidents following involving present her of A.G.’s hand on his he told to keep Kackley’splacing penis, it, whereas, after her hand there but she withdrew Kacldey placed her to what she described C.D.’s hand on his he forced penis, give as “hand 2d at 931-32. jobs.” App. this case that the feature concluded panel distinguishing had a act of first
from was that Kackley “signature” placing Jones “it is a hands on his exposed penis; signature underage girls’ similar in or modus act because it is so strikingly pattern operandi the defendant’s when it is as to authenticate the conduct as alleg- 2d at 932. in a later case.” Kan. edly replicated have convictions Others our cases by concluding upheld among acts to that similarities were sufficient to admit bad Overton, v. or modus In State plan operandi. (2005), was an
P.3d 244 defendant Earnest Overton eighth-grade his three science teacher who befriended 14-year-old separately victims, G.B., T.R., and A.D. Several after female years girls school, with from middle Overton had rape graduated *17 each; indecent liberties with a child as to he re- aggravated to the with a denial. The sponded charges general charges pertain- to A.D. were dismissed at Overton’s be- ing preliminary hearing cause the statute of limitations had run. After a trial 5-year A.D.’s convicted Overton including testimony jury plan, indecent liberties with a child as to G.B. rape aggravated him of the as T.R. acquitted charges On this court the admission of A.D.’s appeal, upheld testimony because we bad acts it described as regarded prior strikingly similar to the current as to G.B. Both were minor allegations girls students at the school where defendant both were 14 taught; years them; old when defendant both students confided began talking in defendant about their defendant family problems; compli- mented both students and to be alone with them at arranged school, them; where he kissed and fondled each of defendant hired both students as and defendant each of them on babysitters; raped bed in his home. particular Overton,
In our did not focus on dissimilarities between opinion stories of sexual abuse. This could be due in to an girls’ part of our burden the limited defense easing analytical argument Overton bad act evidence to appeal. argued support was admissible when it bore a direct and causal relation- plan crimes, i.e., to the the second noted above. ship theory This was theory clearly inapplicable. Rucker,
In
defendant Frank Rucker was charged
with crimes
to the abuse of his
He denied that
relating
daughter.
acts occurred. The State
to introduce
illegal
sought
testimony
about
sexual abuse of Rucker’s other
Both victims
daughter.
were abused from
5 to
both were
children of
age
puberty;
legal
Rucker; both testified that he
a lotion or oil to their
applied
vaginal
area and that he rubbed his
there until he
penis
ejaculated; pen-
etration was not in
situation;
evidence in either
each
said that
girl
Rucker
her if she
and each said he threatened
slapped
protested;
to kill their
if
the abuse.
the evidence
pets
they reported
Finding
sexual
similar,’’
abuse
this court held that it
“substantially
admitted under K.S.A. 60-455 to
properly
prove plan
method
The results
Kackley,
in
we concluded that a
those in other cases which
consistent with
between
bad acts and
of
existed
sufficient
similarity
prior
degree
evidence of the
bad acts to
the current
to
prior
¿legations
permit
Moore,
v.
in
60-455 to
See State
come
under K.S.A.
prove plan.
647-48,
(2002) (similar
639,
55
903
of con
274 Kan.
P.3d
pattern
crime;
both involved
duct between
conviction
defendant
video
age;
surreptitiously
young girls
comparable
crimin¿ conduct,
in
at
as
which
play
preface
taped
girls
himself;
or
both
volved
the victims’ genit¿s
exposing
fondling
had control of envi
crimes occurred in
where defendant
private,
store);
ronment,
267 Kan.
his home or his
State v. Tiffany,
498-502,
(similar
(1999)
used
entice vic
parisons
reached, i.e.,
that the
bad acts and
conclusion
opposite
60-455 ev
current
were too dissimilar
allegations
permit K-S.A.
See,
277 Kan.
idence to
or modus
Jones,
prove plan
operandi.
e.g.,
779, 790-94, 158
421-23;
at
State v.
2d
P.3d
Dayhuff,
App.
sexu¿
(2007) (evidence
abuse of former
330
of defendant’s prior
similar to conduct
not
underlying
girlfriend’s daughter
strikingly
indecent liberties with former wife’s
charge
aggravated
daugh
¿1
ter;
incidents involved defendant
under girl’s clothing
reaching
dissimilarities included
outside of vagina;
presence
touching
incident,
another adult in room
one
demand to
during
secrecy
Davidson,
372, 383-84,
one
Kan.
2d
65 P.3d
girl);
App.
rev. denied
As mentioned
this standard
examination of
governs
value,
whether
evidence has
one of the two
particular
probative
relevance,
as outlined in
Turning comparison here, mitted to Prine’s we note that all three crimes are prove plan similar in the and the of the victims. How- approximate ages gender ever, the sex acts the victims differed. A.M.C. de- specific among scribed discrete events of three S.M. described two other types. bore some to one of activities. The account of similarity
types J.J.S. in which with S.M. and some of the activities defendant engaged different behavior described A.M.C. Under the to a by similarity forth, we have set even of the deferential standard light signature review, it was error to of discretion standard of abuse appellate with admit the evidence of Prine’s bad acts S.M. J.J.S. trial of A.M.C.’s plan allegations. Harmless Error evidence of concluded there were errors admitting
Plaving intent, S.M. and absence of sexual abuse of support J.J.S. accident, and next move to the mistake or we plan, question whether these errors were harmless. The standard for harmlessness is set forth in K.S.A. 60-261:
“No error in either the admission or the exclusion of evidence and no error or
defect in
or order or in
done or omitted
the court or
any
ruling
anything
is
a new trial or for
aside a verdict
any
parties
ground
granting
setting
order,
or for
or otherwise
unless
vacating, modifying
judgment
disturbing
refusal to take such action
to the court inconsistent with substantial jus-
appears
tice. The court at
of the
must
error or defect
every
any
stage
proceeding
disregard
which
tire
does not affect the substantial
proceeding
rights
parties.”
Woolverton,
(2007).
See State v.
The evidence from S.M. and
was undoubtedly prejudicial,
J.J.S.
*20
but we are not concerned with the
nec-
garden-variety prejudice
for
successful
We are concerned
with
essary
any
prosecution.
unfair
Extrapolating
ever-expanding
have
us and
it
that
come before
our Court of Appeals,
appears
evidence of
sexual
children is
abuse of
peculiarly susceptible
to characterization as
evidence forbidden under K.S.A.
propensity
and, thus,
60-455
that convictions of such crimes are especially
vulnerable to successful attack on
This is
be
appeal.
disturbing
cause the modem
tells us that
psychology pedophilia
propensity
evidence
value for
faced with
may actually possess probative
juries
or innocence of a
accused of
deciding
guilt
person
sexually
short,
a child. In
sexual attraction to children and a
abusing
pro
to act
it are
of this
pensity
upon
defining symptoms
recognized
mental
Association,
illness. See American Psychiatric
Diagnostic
Disorders,
(4th
Statistical Manual of Mental
527-28
ed.
pp.
1994)
And our
and our United
(302.2-Pedophilia).
legislature
States
Court have decided that a
Supreme
diagnosis
pedophilia
can be
for indefinite restriction of an of
among
justifications
fender s
to ensure the
of treatment to him or her
liberty
provision
and the
of others who could become victims. See K.S.A.
protection
Crane,
59-29a01 et
409-10,
Kansas v.
534 U.S.
151 L.
seq.;
(2002);
Hendricks,
Ed. 2d
Of court, rather than this is the legislature, body consideration, with study, adoption any statutory make K.S.A. 60-455 more workable such change might cases, without unconstitutional violence to the of crim- doing rights inal defendants. It be time for the to examine the may legislature of amendment to K.S.A. 60-455 or some other advisability appro- to the scheme. priate adjustment statutory *21 Evidence
Sufficiency Rape of We address Prine’s second issue on for review briefly petition because, it, if he were to be successful on he could not be retried Scott, on the count. See State v. rape Syl. ¶ (2007). P.3d 639 case,
When of evidence is in a criminal sufficiency challenged whether, evidence, our standard review is after review of all the examined most favorable we are light prosecution, convinced that a rational factfinder could have found the defendant 59; a reasonable doubt. See 287 Kan. at guilty beyond Vasquez, Morton, (2007). 21-3502(a)(2) K.S.A. defines as “sexual intercourse awith rape 21-3501(1) child who is under 14 K.S.A. defines years age.” “sexual intercourse” for to include: purposes rape “any penetra- tion of the female sex the male sex organ by finger, organ any however is sufficient to constitute object. Any penetration, slight, sexual intercourse.”
Prine focuses on the distinction between A.M.C.’strial testimony and her initial statement to Because she testified at trial Taylor. outside, that Prine’s touched her on the he no fingers argues, rational factfinder could have found that there was even slight pen- etration.
It is true that A.M.C.’s was not uniform on this story completely She said her with interview particular point. explicitly Taylor front, that Prine touched her with his on her between her fingers “inside and outside.” at testified hear- legs, Taylor preliminary “I asked her if the went inside. She said went ing: fingers they inside and outside . . . .”
However, trial, at did not elicit the same prosecutor exactly of Prine’s conduct from A.M.C.: description “Q. Where did touched? you get
“A. front. My
“Q. Where at in front? Where? your
“A. front on the outside. My
“Q. How did he'touch there? you With, “A. with his fingers. *22 wliat did he do with his And fingers?
“Q. “A. Licked them and them on front. my put I’m he did what? sorry, “Q. it “A. He licked them and on front. put my And said he licked it? you
“Q. “A. Yes. . . . (indicating). outside, Do know whether his went inside or? Okay. you fingers you “Q. Outside, “A. outside. Do remember to the about this? Okay. you talking previously police “Q. “A. Yes. Did his went in and out? you say fingers “Q. “A. Out.”
Defense counsel followed on cross-examination: up this, this, Let me ask Let me ahead and [A.M.C.]. ask you go you “Q. was, Now . . . what is that it that as far as and his you’re [Prine] saying fingers, was, outside, it it was always right? Yes, “A. on the outside. outside, and the was on the too? Okay, tongue “Q. “A. Yes. and when about inside outside about Okay, you’re talking you’re talking “Q. play rooms, right? room and the different
“A. Huh? house, You’re about it was inside the talking right? “Q. Yes, “A. we were inside the house when he did that.” always
It is to note that the also watched the important jury videotape interview, of A.M.C.’s on the the sexual abuse was produced day reported.
This court has often stated that the
of the victim alone
testimony
can be sufficient to sustain a
conviction without further cor-
rape
roboration as
as the evidence is clear and
and is
long
convincing
not so incredible and
as to
belief. State v. Borth-
improbable
defy
wick,
899, 904,
(1994);
We the evidence as sufficient to convic- regard support rape tion. Prine’s A.M.C.’s statement and argument ignores videotaped her consistent of the essentials of her account. It many repetitions also the common-sense inference of ignores penetration might evidence,
be drawn from other such as A.M.C.’s repeated descrip- tions of him his Prine be retried on the licking fingers. may rape count.
Reversed and remanded for new trial.
Davis and not Johnson, JJ., participating.
McAnany, Larson, J., S.J., assigned. I McFarland, dissent from the C.J., dissenting: respectfully *23 in decision that order for evidence of bad acts to majority’s prior 60-455, be considered relevant to under K.S.A. “the prove plan evidence must be so similar in or so distinct in strikingly pattern method of to the current a as to be operation allegations signature.” I further dissent from the decision the defendant’s con- reversing victions. decision rests on the that conclusion the majority’s only similar” standard for of crimes ev-
“sufficiently admissibility prior idence to child sex abuse cases has been too difficult prove plan In the predictably reliably apply. support, majority points to several cases which it is to reconcile the results impossible that were reached.
First, the new standard is neither more clear nor work- majority’s Second, more difficult to I that able—only satisfy. although agree irreconcilable, the decisions these cases are it is not because the Instead, standard is unworkable. it is because there have been a series of decisions this court and the Court of that have by Appeals and confounded the standard for misinterpreted original relevancy admission of evidence a remark in plan by misconstruing single Damewood, (1989). In Dame- wood, the court commented that the evidence of the crimes prior in that case was similar” to the crime. 245 Kan. “strikingly admission, a comment on was not a standard for at 682. This case. This the evidence at issue particular quality as a was further misinterpreted requiring subsequently language standard act.” While this from the divergence original “signature and, thus, standard was not overturned original occurring, result, restrictive co- law. As more remained language good Hence, in our case law. it is not with the standard existed original evidence are that decisions on the admissibility plan surprising reconcile. impossible
The distortion
standard
similarity
Damewood, the court
that evidence of
crimes
In
explained
under K.S.A. 60-455 where the evi-
to show
is
plan
permissible
dence “is admitted to show the modus
method
operandi
general
used
a defendant
similar but
unrelated
totally
perpetrate
of such evi-
crimes.”
which occurred between him and the defendant in 1983 was similar strikingly the method and the defendant used with even to the use of specific plan J.A., as well as actions of the defendant.” 245 Kan. statements language specific at 682. of the Damewood decision as
That
the evidence
part
describing
the deci-
similar” is not the
which
“strikingly
legal principle upon
based,
is
it is
more than a comment on the
sion
degree
nothing
high
case. Cer-
shown
the evidence
that
similarity
particular
case can meet or even exceed
evidence
tainly,
any given
a
bar for all cases
standard of
without
admissibility,
creating higher
That, however, is
what has
that come after.
exactly
happened.
The court’s comment Damewood was first
as the
misapplied
Rucker,
816,
standard for
in State v.
267 Kan.
admissibility
(1999). There,
P.2d 1080
the court stated that the
crimes
“
evidence was admissible in Damewood because it was strikingly
Rucker,
similar to the method and
used in the later crime.”
plan’
In State v. (2001), Kan. 2d App. Damewood, Court of noted that in Appeals perpetrator’s “ ” method in each incident was similar.’ 29 Kan. ‘strikingly 2d at 190. The court further noted that in Tiffany: evidence, “The Kansas Court the admission of the Supreme upheld finding similar’ method of ‘strikingly [Citations the court operation. omitted.] Specifically, victims, found it relevant that the defendant used similar words to entice the the victims were about the same and that the criminal conduct was age, performed *25 (Citation omitted.)” Aldaba, in the same manner. 29 Kan. 2d at 190. App.
743 in Damewood this, “As concluded: the Court Based on Appeals here.” similar’ accounts are the children’s ‘strikingly Tiffany, 2d at 190. 29 Kan. App. Tolson, in State v. Kan. 274 first term appears “signature” There, the term
558, (2002). the court used P.3d 279 “signa- in Damewood: at of the evidence issue the ture” to describe quality 676, (1989), Damewood, 245 Kan. 783 P.2d “The State relied on method used a as the described ‘modus ‘general which the court operandi’ omitted.] unrelated crimes.’ [Citation similar but totally defendant perpetrate him in his which allowed method was to interest beekeeping, Damewood’s boys no molest them. The court found that he could alone with them so sexually be into man who had been drawn tire of a in the admission of testimony young error before the vic then abused several Damewood and years sexually beekeeping with Damewood. [Citation omitted.] crime became involved tim of the charged Damewood, it so distinct as to a and was there was method “In operation, time alone was tried for a Damewood arranging spend be being ‘Signature.’ and then activities sexually the his with a boy beekeeping boy by involving or method of was the same of conduct him. operation Precisely pattern molesting occasion. have followed on acts evidence to been previous shown by Tolson, added.) a clear case does not such “This picture.” (Emphasis present at 563-64. 274 Kan. the Tolson states be noted that
It must although opinion so because “it was Damewood affirmed the admission of evidence ” used term was not to be a distinct as “signature” ‘signature,’ in Damewood. similar” it is obvious that this language “strikingly
By point, Damewood, admission into the standard for used in was morphing Davidson, v. 2d in State 2003, 31 Kan. In evidence. App. plan (2003), rev. denied 372, 1078, 65 P.3d “strikingly of the Court of similar” syllabus Appeals’ language appeared opinion: to show K.S.A. 60-455 evidence the second for admission of “Under theory method of crime when its have admitted evidence of Kansas courts
plan, crime.” the method of the was similar to charged commission strikingly Similarities between and it is held: “The record of this case is examined of K.S.A. and the admission acts were not crimes and striking, 7. 2d Syl. to show ¶¶ 60-455 evidence improper.” plan *26 744 decision,
In its the Court of relied on the Appeals “strikingly as similar” the standard for admission of evi- legal language plan dence: “We conclude this case lacks the similarities that ‘striking’ circumstances, our have marked Under these it was precedents. error the for the district court to admit K.S.A. 60-455 evidence to Kan. 31 2d at 384. prove plan.” App. addition,
In the of the similar” appearance “strikingly language in the is the the sets out of syllabus important, syllabus points law in the decided case. See K.S.A. 20-111 (requiring opinions case”); include a “the out decided the syllabus setting points (b) K.S.A. 60-2106 “shall a contain (appellate opinions syllabus decided”). the lawof points
In State v.
413,
277
85
(2004),
Kan.
P.3d 1226
this court
Jones,
noted the
in the
the
standards
case law for
divergent
degree
for admission of
crimes evidence to
similarity
prior
required
prove
under K.S.A. 60-455. The court noted the
similar”
plan
“strikingly
Damewood,
Aldaba,
and
used
Tiffany,
“signature” language
Tolson,
the “similar
to show a common
that
enough
approach
used in Clements.
is
to a
tantamount
277
Jones,
plan” language
however,
court,
Kan. at 421. The
did not
resolve
confusion.
Instead,
the court held that
the facts of the case failed to meet
“either
standard
of the or modus for the crime and the crime for which plan operandi prior defendant is on trial are similar or reflect a method so ‘strikingly operation ” distinctive as to be 32 Kan. 2d 3. ‘signature.’ App. Syl. ¶
Most
37
2d
Dayhuff,
Kan.
158
recently,
App.
(2007),
P.3d 330
the Court of
noted the
stan
Appeals
divergent
dards
and held
act” was the
“strikingly similar”/“signature
legal
standard, for admission of
crimes evidence to
prove plan:
act,’
is
clarified whether
standard
Court has never
‘signature
“Our Supreme
similar,’
whether the
crimes
when
or ‘similar
determining
enough’
‘strikingly
See
277 Kan. at
Jones,
under K.S.A. 60-455.
is relevant
to show
evidence
plan
Nevertheless,
and this court have more
since Clements
our
Court
423.
Supreme
act’ standard when deter-
similar’ or die
‘signature
‘strikingly
recently applied
Rucker,
see
evidence is relevant
to show
whether
crimes
plan;
mining
932;
500;
Da-
826-28;
32 Kan.
2d at
Kan. at
Kackley,
Tiffany,
App.
Kan. at
Aldaba,
vidson,
381;
2d at 190. Our
2d at
App.
Supreme
and Clements
little
defined the term ‘similar
provides
Court has never
enough,’
Court
Based on how our
for such
standard.
Supreme
analysis
guidance
*27
issue,
act’
similar’ or
have been
the
‘signature
and this court
treating
‘strikingly
this case.
standard for
is the
analysis
appropriate
case
show a dis-
evidence
this
there was insufficient
“Because
presented
act,’ we conclude
similar’ or a
tinct
of
that was
‘signature
mode
‘strikingly
operation
s
crimes under
evidence of
that the trial court erred
Dayhuff
admitting
37 Kan.
2d at 793-94.
K.S.A. 60-455.”
Dayhuff,
exception
plan
new,
more
with a
much
us to where we are
This
today:
brings
restrictive,
crimes evidence
standard
admissibility
legal
before,
that occurred without
than we had
a result
to prove plan
simi-
decision to abandon
deliberate or conscious
original
any
should
standard. This is not how
develop.
legal principles
larity
We addressed the error of
commenting
misconstruing language
in Trustees
The
the case as the
standard
on the facts of
legal
847, v.
205 Kan.
United Methodist Church Cogswell,
(1970).
for
used
concerned the tax exemption
property
Cogswell
11, 1 of the
under Article
for
§
“exclusively”
religious purposes
court,
de-
The trial
Kansas Constitution.
relying
prior appellate
and
cisions
the words
“immediately”
conjunc-
“directly”
using
tax
with
when
tion
religious purposes
“exclusively”
discussing
if it is used
held that
is
directly,
only
exemption,
property
exempt
Because the
and
for
exclusively
religious purposes.
immediately,
for such
at issue was used only indirectly
purposes,
property
trial court held it did not
qualify
exemption.
noted
reversed.
On this court appeal, first that the the trial court relied on decisions “tend[ed] upon trial court—that the of the blush to provisions support position from here in of the constitution and the statute exempt question and as it used taxation such immediately ‘directly, only property ” However, held that the at 853. the court exclusively[.]’ word had been narrowed cases con- “exclusively” improperly it to mean that which is also used and “im- struing only “directly” 7. To out how that mediately.” Syl. ¶ figure hap- tbe court traced the source of the words and pened, “directly” in the case law and found that in the first case “immediately” which and were used to they appeared, “directly” “immediately” describe the facts of the case and did not constitute the rule of law the court: applied by “In the it was stated the facts disclose ‘the opinion was used more or property less or for educational mediately But none it remotely of was used purposes. and exclusively, for such directly, immediately [Citation A purposes.’ omitted.] careful of the will indicate the terms reading opinion and ‘directly’ ‘immediately’ used in the were opinion to be explanatory of the factual designed descriptive situation. It is clear in the the rule the court opinion applied by exempt property ”
from taxation was that it must be used
for educational
‘exclusively
purposes.’
That is what has occurred with the exactly language “strikingly words, similar.” In those the court in Damewood was using merely the fact that the circumstances of that case showed a describing than the level of standard of re- similarity higher similarity high — for admission. In those words without seizing upon recog- quired were never intended establish a standard that they higher nizing Damewood, in than that the court our similarity applied of the evidence at issue courts erred measuring admissibility words, and ended into the stan- those they up morphing against This is not or should dard. how precedent legal principals develop, deliberate, then the law without a conscious de- because changes it should be In none of these cases cision as to whether changed. deliberate, conscious, de- was there a reasoned fully argued cision to abandon the standard favor of the similarity original standard similarity” higher imposed requiring “striking “sig- act.” nature We should not allow our this precedent develop fashion.
In I with the that there has been con- summary, majority agree However, fusion Kansas decisions in these cases. among appellate I this has been because standard was similarity disagree low, or, states, too as the did not have “meat on majority enough its bones” to allow courts to draw the line between reliably pro- Instead, evidence and evidence. the confusion is the pensity plan result of the erroneous evolution of a standard of admissi- higher Hence, that coexisted with the standard. it is not bility original that decisions on the evidence are surprising admissibility plan to reconcile. impossible standard for
Interestingly, similarity admissibility crimes evidence to show has not over the identity warped years and is with little This shows the being applied difficulty. similarity unworkable, standard is not it needs to be uniform. On the just need for I with I But see no reason uniformity, agree majority.
to abandon the
standard set
out Damewood. Accord-
original
I would hold that
crimes evidence is relevant to
ingly,
where the method of
acts is so similar
plan
committing
to that utilized in the case
tried that it is reasonable to con-
being
clude the same individual committed both acts. In such cases the
evidence is
to show
admissible
or method of
plan
operation
*29
and conduct utilized
the defendant to
the crimes or
accomplish
acts.
that, standard, under the trial court did not err in allowing the evidence admission of crimes to prove plan.