RANDY SPRINKLES V. COMMONWEALTH OF KENTUCKY
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RENDERED : NOVEMBER 25, 2009
-- NOTTO BE PUBLISHED ,-
,vut remr Courf of I
2008-SC-000301-MR
RANDY SPRINKLES
V.
ON APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY ALLEN LAY, JUDGE
NO. 07-CR-00047
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND VACATING AND REMANDING IN PART
Appellant Randy Sprinkles appeals as a matter of right from a judgment
of the Knox Circuit Court convicting him of one count of first-degree rape
where the victim is less than 12 years old and one count of first-degree rape
where the victim is physically helpless . We affirm Appellant's conviction and
sentence, but vacate the imposition of five years conditional discharge, and
remand for imposition of three years conditional discharge.
I . BACKGROUND
Appellant was indicted for raping or otherwise sexually assaulting his
stepdaughter, HS, and four of her friends: SB, WM, WL, and BH. Appellant
ultimately pleaded guilty to first-degree rape of SB and second-degree sexual
abuse of WM. While the charges relating to Appellant's stepdaughter (HS) were
severed, Appellant was tried jointly for the charges relating to WI, and BH . It. is
the WL and BH charges that are the subject of this appeal . However, all five
girls testified at Appellant's trial.
SB, whom Appellant pleaded guilty to raping, testified first . She testified
that she was friends with Appellant's stepdaughter (HS), and lived next door.l
One night in May 2003, 2 when SB was sleeping over at Appellant's house,
Appellant gave her a pill, which he said was to help her sleep . SB went to sleep
in HS's bed. When she awoke, Appellant was standing naked over her, having
intercourse with her. She tried to resist, but lost consciousness. SB testified
that she was no longer in the bed she had lain down in. She awoke the next
morning back in HS's room. Her clothes were halfway off and she was
bleeding. SB testified that she never slept over at Appellant's house again.
WM, whom Appellant pleaded guilty to sexually abusing, testified next at
trial. WM testified that, while sleeping over at Appellant's house, he gave her
and HS a pill, which he said was a vitamin . The pill made her feel "high," sick,
and sleepy, and she vomited before falling asleep . WM lay down in HS's bed.
She awoke in the morning to find Appellant standing over her, fondling her.
WM went home, and never stayed the night at Appellant's house again.
BH, one of the victims in this case, testified that she spent the night with
HS at Appellant's house once when she was 12 years old . She testified that
1 HS and Appellant lived together.
2 All victims were between approximately 10 and 13 years of age at the time the
various incidents occurred. At the time of trial, the victims were each 16 or 17
years old.
Appellant gave her and HS a pill, which he said was a vitamin . The pill made
her drowsy, and she fell asleep much earlier than she usually did . She testified
that she could not hold her eyes open .
BH lay down in HS's bed . She awoke to Appellant standing over her,
with her shirt half unbuttoned. BH then fell asleep, and woke up again to find
Appellant on top of her, raping her. BH testified that in the morning, she had
blood in her underwear, as well as what she now recognized as "sperm." She
testified that she was also physically sore. BH never spent the night at.
Appellant's house again.
WL, the second victim in this case, testified that she was friends with HS
and spent the night at Appellant's house when she was 10 years old . Appellant
gave WL and HS what he called a vitamin. WL said that she did not want to
take it, and Appellant told her that she had to take it if she wanted to stay with
HS. WL testified that the "vitamin" made her sleepy, and that she fell asleep
watching TV.
WL woke up to Appellant touching her feet and legs, but she "couldn't
really wake up." She witnessed Appellant taking HS out of the room before
falling asleep again. WL woke up a second time to Appellant rubbing his hands
up her shorts and shirt. She testified that Appellant took her shorts off, got on
top of her, and raped her. Appellant then put her shorts back on. WL stated
that she had blood between her legs the next morning (approximately a year
before her first period), and that she was physically sore. WL testified that she
never spent the night at Appellant's house again .
HS, Appellant's stepdaughter, also testified at trial, corroborating and
expanding on the statements of the other four girls. She testified that she took
a "vitamin" at the same time as WL, and that it made her drowsy. That night,
she woke up in Appellant's bed. The next morning, WL wanted to go home . HS
also testified that BH stayed over, took a vitamin, and wanted to go home in
the morning. She testified that SB stayed at her house regularly, and that both
girls took a pill the last time she spent the night. HS testified that Appellant
encouraged her to have her friends spend the night, and that none of her
friends spent the night again after Appellant gave them a pill .
Detective Mark Mefford of the Kentucky State Police testified that he
investigated charges against Appellant . He noted that interviews with one
person would lead him to others, and that all victims mentioned being given
some sort of pill. Detective Mefford also testified that Appellant told police he
took sleep medication .
Appellant testified in his own defense . He admitted to having intercourse
with SB and fondling WM . He also admitted that he had entered guilty pleas to
charges related to both girls . However, Appellant denied ever giving pills of any
sort to any of the girls, and he denied raping BH and WL.
The jury found Appellant guilty of first-degree rape of both BH and WL.
For the rape of WL, a person under 12 years old (a Class A felony), the jury
recommended, and the circuit court imposed, a sentence of life imprisonment .
For the rape ol'131-1 while she was physically helpless (a Class B felony), the jury
recommended, and the circuit court imposed, a. sentence of 10 years
imprisonment . The court ordered that the sentences run concurrently, and
also imposed a five-year period of conditional discharge upon release from
incarceration or parole. Sprinkles now appeals these convictions as a matter of
right. Ky. Const. ยง 110 .
II . ANALYSIS
Appellant alleges errors in both the guilt phase and the penalty phase of
his trial . These alleged errors are best analyzed by discussing each phase of
the trial separately .
A.
Guilt Phase of Trial
1.
Joint Trial on Counts Against WL and BH and Prior Bad Acts
Evidence
Appellant filed a motion for severance of trials for the charges relating to
WL and BH. Appellant also filed a motion to exclude the testimony of SB, WM,
and HS. The circuit court overruled these motions, and also found the
testimony admissible under KRE 403. Appellant argues that these rulings by
the circuit court were error.
With regard to the joinder of offenses, RCr 9.16 provides that:
If it appears that a defendant or the Commonwealth is
or will be prejudiced by a joinder of offenses or of
defendants in an indictment, information, complaint or
uniform citation or by joinder for trial, the court shall
order separate trials of counts, grant separate trials of
defendants or provide whatever other relief justice
requires .
However, "a defendant must prove that joinder would be so prejudicial as to be
`unfair' or `unnecessarily or unreasonably hurtful .'" Ratliff v. Commonwealth,
194 S .W .3d 258, 264 (Ky. 2006) (quoting Commonwealth v . Ro ers , 698
S .W.2d 839, 840 (Ky. 1985)) . In addition, we will not reverse a ruling on an
RCr 9 .16 motion absent an abuse of discretion . Ratliff, 194 S.W.3d at 264 .
"[A] significant factor in determining whether joinder is proper is the
extent to which evidence of one offense would be admissible in a. trial of the
other offense." Commonwealth v. English, 993 S.W.2d 941, 944 (Ky. 1999)
(citing Rearick v. Commonwealth, 858 S .W.2d 185, 187 (Ky. 1993)) . Therefore,
Appellant's arguments about joinder and the testimony of SB, WM, and HS are
closely intertwined . We reverse a trial court's decision to admit evidence only if
doing so was an 'abuse of discretion, i .e ., it was "arbitrary, unreasonable,
unfair, or unsupported by sound legal principles ." Clark v. Commonwealth,
223 S.W.3d 90, 95 (Ky. 2007) (citing Brewer v. Commonwealth, 206 S.W.3d
313, 320 (Ky. 2006) ; and quoting English, 993 S.W.2d at 945) .
Under KRE 404(b), evidence of other crimes or bad acts of the accused is
generally inadmissible . This evidence is, however, admissible if offered for
"proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident[.]" KRE 404(b) . This list is not exhaustive, and
another "generally recognized exception" to the prohibition on prior bad acts
evidence is when such evidence is offered to prove modus operandi . Clark, 223
S .W.3d at 96 .
"The modus operandi exception requires `the facts surrounding the prior
misconduct [to be] so strikingly similar to the charged offense as to create a
reasonable probability that (1) the acts were committed by the same person,
and/or (2) the acts were accompanied by the same mens rea.' " Id . (quoting
En hsh, 993 S.W.2d at 945). In many sex crime cases, the issue of whether
the acts were committed by the same person is integrated with the issue of
corpus delicti, i.e. "whether the event occurred at all." Dickerson v.
Commonwealth , 174 S.W.3d 451, 469 (Ky. 2005) (quoting Billings v.
Commonwealth , 843 S .W.2d 890, 892 (Ky.1992)) .
When offering evidence to prove that the acts were committed by the
same person, the proponent of the prior bad acts evidence must "demonstrate
that there is a factual commonality between the prior bad act and the charged
conduct that
is simultaneously similar and so peculiar or distinct that there is
a reasonable probability that the two crimes were committed by the same
individual ." Clark, 223 S.W.3d at 97 (quoting Commonwealth v. Buford , 197
S.W.3d 66, 71 (Ky. 2006)) . 3 The commonality must be more than a mere
statutory element of the offense. Clark, 223 S .W.3d at 98.
In this case, the four girls were HS's overnight guests. All five witnesses
testified to some sort of pill. SB and WM (the prior victims) each testified that
3 "Evidence of other acts of sexual deviance . . . must be so similar to the crime on trial
as to constitute a so-called signature crime." Rearick v. Commonwealth, 858
S.W.2d 185, 187 (Ky. 1993) as uoted by Dickerson, 174 S .W.3d at 469 and Clark,
223 S.W.3d at 91.
Appellant gave them a pill, which he either said would help them sleep or
which he referred to as a "vitamin." HS testified that Appellant gave both girls
a pill, and that she took the pill as well . SB and WM testified that they fell
asleep, and when they woke up, Appellant was standing over them, either
raping or fondling them. This testimony is remarkably similar to that of the
victims in this case, WL and BH . Both WL and BH testified that Appellant gave
them a pill, which he called a vitamin . Both girls became drowsy and fell
asleep. They awoke to find Appellant fondling, and then later raping them.
SB, WM, and HS testified to acts by Appellant which, we believe, were
strikingly similar to the acts alleged in this case, to the point of creating a
reasonable probability that Appellant raped WL and BH as well. Furthermore,
giving the victim a pill is not a statutory element of the offense of first-degree
rape . While Appellant was convicted of raping BH while she was physically
helpless under KRS 510.040(1) (b) 1, the statute does not require that the
defendant be the person who made the victim physically helpless . Evidence
that Appellant gave the prior victims a pill and sexually assaulted them in their
sleep when they spent the night with HS is "strikingly similar" enough to the
charged conduct to meet the modus operandi exception of KRE 404(b) .
Therefore, the circuit court did not err in admitting the testimony of SB, WM,
and HS.
In addition, with regard to the two charged counts, WL and BH described
scenarios even more similar to each other than what was described by SB, WM,
and HS. Therefore, evidence of Appellant's actions against. one of the victims
would have been admissible in a trial for Appellant's actions against the other
victim. The circuit court did not err in refusing to sever the charges related to
WL and BH .
Even when evidence is admissible under KRE 404(b), the court must still
conduct the balancing test required by KRE 403 to determine whether the
probative value of the evidence is substantially outweighed by the danger of
undue prejudice. See En lish, 993 S.W .2d at 945 . While the testimony of the
other victims was clearly prejudicial to Appellant, it was also highly probative of
the corpus delicti. See Clark, 223 S .W.3d at 97. The probative value of the
prior bad acts evidence is heightened by "the multiplicity of victims, the
multiplicity of occurrences," and the striking similarities in each occurrence.
English, 993 S.W.2d at 945 . The circuit court did not abuse its discretion in
ruling the prior bad acts evidence admissible under KRE 403 .
2.
Introduction of Certified Copies of Guilty Plea Final
Judgments
During Detective Mefford's testimony, the Commonwealth sought to
introduce certified copies ofjudgments showing Appellant's guilty pleas and
convictions for first-degree rape (of SB) and second-degree sexual abuse (of
WM) . The Commonwealth argued that the judgments were admissible under
KRE 404(b) as modus operandi evidence.
After considering the issue at length, the court ruled that the judgments
were not being admitted for bolstering or impeachment purposes, but only as
KRE 404(b) evidence . The judge stated, "I will permit the Commonwealth to
introduce this evidence consistent with the court's ruling as 404(b) evidence
. . . to be introduced for the purposes allowed under that rule."
Admitting the certified copies of the prior judgments was error. While
the testimony of WM, SB, and HS was admissible under KRE 404(b) to show
modus operandi, the same cannot be said for the judgments of conviction
related to the events testified to. None of the "strikingly similar" circumstances
of the crime were present in the judgments (i.e . that Appellant gave the two
girls a pill or that they were overnight guests of his stepdaughter) . The
judgments merely showed that Appellant pleaded guilty to, and was convicted
of, first-degree rape and second-degree sexual abuse. The details of the crimes,
which were the very reason why the prior bad acts testimony was admissible,
were entirely lacking from the judgments of conviction .
In Benjamin v. Commonwealth, we permitted the introduction of
Benjamin's prior conviction for assaulting his wife, because it showed that
Benjamin had a motive for her murder. 266 S.W.3d 775, 791 (Ky. 2008). But
in that case, the conviction in and of itself showed motive, making it admissible
under KRE 404(b) . We also criticized prior bad acts statements by a police
officer in Dickerson v. Commonwealth, because the police officer's statements
lacked any of the details that would make them admissible under KR.E 404(b) .
174 S.W.3d 451, 467 (Ky. 2005) .
Although it was error to admit the certified copies of the judgments, the
error was harmless . See RCr 9 .24. During his testimony, Appellant admitted
to having intercourse with SB and fondling WM. He also admitted to pleading
guilty to charges relating to both girls. Therefore, the inadmissible evidence
was cumulative of Appellant's own admissions, and it had no substantial
influence on the verdict. Winstead v. Commonwealth, 283 S .W.3d 678, 689
(Ky. 2009) . See also Harp v. Commonwealth, 266 S.W.3d 813, 821 n.32 (Ky.
2008) (citing Coulthard v. Commonwealth, 230 S.W. 3d 572, 585 (Ky. 2007) ;
Brewer v. Commonwealth, 206 S.W.3d 343, 352 (Ky. 2006)) .
3.
Prosecutor's Comment During Opening Statement
During the Commonwealth's opening statement, the prosecutor stated :
'This is probably the most important case I've ever been involved in. I've done
a lot more civil work than prosecution. This is the first time I have not slept or
I have worried about how I did or what I do ." Appellant argues that this
comment was error.
This claim of error is not preserved, and Appellant requests we review for
palpable error under RCr 10.26, which requires the error result in "manifest
injustice" i .e., a substantial possibility of a different result. Brewer v.
Commonwealth , 206 S.W.3d 343, 349 (Ky. 2006) . This is also often described
as a defect, which is "shocking or jurisprudentially intolerable." Martin v.
Commonwealth , 207 S.W. 3d 1, 4 (Ky. 2006) .
In making the comment during his opening statement, the prosecutor
improperly injected his own personal beliefs and feelings about: the importance
of the case, and implicitly about the weight of the evidence.
The office of an opening statement is to outline to the
jury the nature of the charge against the accused and
the law and facts counsel relies upon to support it
. . . . It is never proper in an opening statement for
counsel to argue the case or to give his personal
opinions or inferences from the facts he expects to
prove .
Turner v. Commonwealth, 240 S.W.2d 80, 81 (Ky. 1951) . See also ABA
Criminal Justice Section Standard 3-5.5 ("The prosecutor's opening statement
should be confined to a statement of the issues in the case and the evidence
the prosecutor intends to offer which the prosecutor believes in good faith will
be available and admissible .") .
Although the prosecutor's statement was improper, we cannot say that it
rises to the level of palpable error. The statement was brief, and was followed
by a proper outline of the charges against Appellant . While improper, the
prosecutor's statement does not rise to the level of "manifest injustice," as
required by RCr 10.26 . Martin, 207 S .W. 3d at 3 . There is no substantial
possibility the prosecutor's statement affected the result, and therefore no
palpable error.
B.
Penalty Phase of Trial
1.
Victim Impact Testimony by Victims of Other Crimes
During the penalty phase of the trial, WL and BH, the two victims in this
case, gave victim impact testimony. However, SB and WM, the two victims
Appellant had already pleaded guilty to raping or abusing, also testified.
BH, one of the victims in this case, testified that she was suicidal, had
been "bad on drugs," and could no longer go to school . WL, the other victim in
this case, testified that she was depressed, could not have relationships, and
had trouble sleeping.
WM, whom Appellant pleaded guilty to sexually abusing, testified that
she had been suicidal and had a drug problem. She stated that she had had
counseling through Drug Court.
SB, whom Appellant pleaded guilty to raping, testified that she had been
in and out of mental hospitals and that she had attempted suicide five or six
times. - She also testified that, after being raped by Appellant, she became
pregnant and had an abortion. SB testified that she had not had any sexual
partners prior to being raped by Appellant. Each of the four girls also thanked
the jury for convicting Appellant. Each girl testified for two to three minutes .
The Commonwealth argued at trial that the testimony of WM and SB was
allowed by KRS 532 .055(2)(a), which permits the Commonwealth to offer
evidence "relevant to sentencing including: . . ."
2.
The nature of prior offenses for which he [the
defendant] was convicted;
7.
The impact of the crime upon the victim or victims . . .
including a description of the nature and extent of any
physical, psychological, or financial harm suffered by
the victim of victims . . . .
Appellant's counsel agreed that the testimony of WM and SB would be
allowed under KRS 532.055(2)(a) . However, counsel argued that SB's
testimony about her pregnancy and abortion should be excluded as overly
prejudicial under KRE 403. The circuit court ruled that SB's testimony was
allowed pursuant to KRS 532 .055(2)(a) 2 and 7 . The court also ruled that,
while testimony that she became pregnant and had an abortion would be
prejudicial, the prejudicial effect was not substantially outweighed by its
probative value, and the testimony was therefore admissible under KRE 403 .
Appellant now objects to the entirety of WM's and SB's testimony, and
requests we review his unpreserved claims for palpable error pursuant to RCr
10.26. Victim impact testimony always present difficult questions .4 In this
case, however, because Appellant agreed at trial that most of WM's and SB's
testimony was permissible, we need only review the majority of the testimony
for palpable error . Given that WM and SB each testified for approximately
three minutes, and given that they were each properly permitted to testify
about Appellant's prior bad acts during the guilt phase of the trial, we see no
manifest injustice requiring reversal pursuant to RCr 10.26 .
With regard to SB's testimony about her pregnancy and abortion, the
Commonwealth essentially concedes error, but argues the error was harmless .
In Robinson v. Commonwealth, this Court held that the "nature of prior
offenses" under 532 .055(2)(a)2 was limited to the generic character of the
4 We have previously held that KRS 532 .055 violates the principle of separation of
powers, but, under the principle of comity, we have thus far declined to hold it
unconstitutional . See Commonwealth v. Reneer , 734 S.W .2d 794, 798 (Ky. 1987) .
offense. 926 S.W.2d 853, 855 (Ky. 1996) . We held that it. was reversible error
to allow, in the penalty phase, the defendant's prior victim to testify "at length
as to the specifics of this assault, including the nature of the injuries inflicted
upon her and the fact that Appellant forced her to lie to emergency room
personnel about the source of her injuries ." Id. at 854 .
In this case, SB's testimony about her pregnancy and abortion was very
brief. SB was also properly allowed to testify to specifics of the crime during
the guilt phase . Under these circumstances, SB's testimony did not have a
substantial influence on the penalty phase verdict . Winstead , 283 S.W.3d at
689. The error was therefore harmless See RCr 9.24
2.
Prosecutor's Statements During Closing Argument
Appellant argues that two statements by the prosecutor during the guilt
phase closing argument were error. These errors are unpreserved, and
Appellant requests review for palpable error under RCr 10.26, which requires
the error result in "manifest injustice" i .e., a substantial possibility of a
different result. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) .
a.
Prosecutor's Misstatement of the Law
During the penalty phase, the Commonwealth called Probation and
Parole Officer Pamela Handy as a witness . Handy testified to the penalty
ranges for each of Appellant's offenses. She testified that, for a person
convicted of first-degree rape to be eligible for parole, he or she must first serve
85% of the total sentence or 20 years, whichever is less . She explained that if
Appellant were sentenced to 20 years imprisonment, and were paroled after 17
years, he would "only stay on parole until 20 years was actually expired." She
further explained that, if Appellant received a sentence of life imprisonment,
"he's going to remain on parole, under our supervision, for the remainder of his
life."
On cross-examination of Handy, Appellant elicited the fact that the
decision to grant parole is in the discretion of the parole board, and that sex
offenders must complete mandatory treatment before being eligible for parole .
Appellant's counsel also elicited information about the various conditions that
are placed on parole .
During the Commonwealth's penalty phase closing argument, the
prosecutor summarized Handy's testimony:
if this defendant gets the 20 years . . . then in 17 years
he's gonna meet the parole board. He can get parole .
They will monitor him for 3 years, as long as they can
monitor. And then he's gonna be free. He will have no
supervision. He will have nobody checking in on him.
He will have no drug testing.
Appellant argues that this statement was error, because it misstates Kentuc
law.
Under the version of KRS 532 .043 in effect at the time of Appellant's
crimes, persons convicted of sex offenses must serve a three-year period of
conditional discharge upon final release from incarceration or parole. Had
Appellant received a 20-year sentence and been granted parole after 17 years,
he would have been on parole for three years, followed by an additional three
years of conditional discharge, for a total of six years of supervision .
First, we note that a prosecutor's misstatement of the law does not
automatically require reversal. Matheney v. Commonwealth , 191 S.W.3d 599,
606 (Ky. 2006) . The essence of the prosecutor's argument was that, if
Appellant did not receive a life sentence, he would one day be free with no
supervision. Given that the jury imposed a life sentence, we cannot say there
was a substantial possibility of a different result had the jury been aware of the
three-year period of conditional discharge. Therefore, there was no palpable
error.
Alleged Prosecutorial Misconduct in Urging Jury to
"Protect Our Community"
Related to the statement about Appellant's parole eligibility, the
Commonwealth asked the jury to impose a life sentence, so that Appellant
would be under the supervision of Probation and Parole for the remainder of
his life. In so doing, the prosecutor stated, "If he gets out-I don't know that he
will . Nobody can predict that. But if he does, let's make sure we protect our
community."
In conducting a palpable error review of alleged prosecutorial misconduct
during a guilt phase closing argument, we consider (1) the amount of
punishment fixed and the weight of evidence supporting that punishment ; (2)
whether the Commonwealth's statements are supported by facts in the record;
(3) whether the challenged statements appear t.o rebut. arguments raised by
defense counsel ; and (4) whether the closing argument, taken as a whole, is
within the wide latitude grated to counsel during closing argument . Young v.
Commonwealth , 25 S.W .3d 66, 74 (Ky. 2000) .
In Brewer v. Commonwealth, the prosecutor used similar language to
urge an 80-year sentence, so that, if the defendants received parole in eight
years, they would still have "seventy-two years hanging over their heads." 206
S.W .3d 343, 349-50 (Ky. 2006). In that case, the prosecutor also urged the
jury to "send a message," a statement with which we have frequently expressed
disapproval. Id . at 350 (citing Commonwealth v. Mitchell, 165 S.W.3d 129 (Ky.
2005) ; Youn , 25 S .W.3d at 73 . Nevertheless, we concluded that the error in
Brewer did not rise to the level of palpable error. 206 S. W.3d at 351 .
The prosecutor's statement in this case was similar to that in Brewer,
but without the more objectionable "send a message" language. As in Brewer ,
the prosecutor's argument was in response to defense counsel's plea for
leniency on account of Appellant's age. Id. at 350. And as in Brewer,
Appellant's crimes "were serious enough to warrant a high degree of
punishment ." Id. (citing Youn , 25 S.W.3d at 75) . In addition, the prosecutor's
closing argument as a whole was within the wide latitude granted to counsel.
We therefore find no palpable error.
3.
Ex Post Facto Violation in Five-Year Period of Conditional
Discharge
The circuit court imposed a five-year period of conditional discharge
upon release from incarceration or parole. Appellant argues that this was
error. The former version of KRS 532.043 required sex offenders, upon final
release from incarceration or completion of parole, to be subject to a three-year
period of conditional discharge. Effective July 12, 2006, the conditional
discharge period increased to five years . 2006 Ky. Acts 182. Appellant
committed his crimes prior to July 12, 2006, but was sentenced to five years
conditional discharge upon release. The Commonwealth concedes that this
was error, and we agree. See Purvis v. Commonwealth , 14 S.W.3d 21 (Ky.
2000) .
The length of conditional discharge upon final release is unlikely to affect
Appellant, given that he has received a life sentence . But this is nevertheless a
clear constitutional error. The case must be remanded for the circuit court to
enter a sentence of three years conditional discharge upon final release.
III. CONCLUSION
The imposition of a five-year period of conditional discharge upon
Appellant's final release is hereby vacated, and the case remanded with
instructions for the Knox Circuit Court to impose a three-year period of
conditional discharge upon Appellant's final release. In all other respects, the
judgment of the Knox Circuit Court is hereby affirmed .
All sitting. Minton, CA . ; Abramson, Noble, Schroder, Scott, and Venters,
JJ ., concur. Cunningham, J., concurs in result only by separate opinion .
CUNNINGHAM, J ., CONCURRING IN RESULT ONLY : I respectfully
concur in result only.
I do not find error, palpable or otherwise, in the trial court allowing the
introduction of copies of the guilty plea judgments of his previous sexual
misconduct against other victims. The majority has decreed that the prior bad
acts evidenced by the judgments are admissible under KRE 403. The details of
these crimes had already been put into evidence by the victims. As the
majority correctly notes : "[T]he ascendant issue [in many sex crimes cases is]
whether the event occurred at all." Billings v. Commonwealth , 843 S .W.2d
890, 892 (Ky. 1992) . The certified copies of Appellant's guilty pleas and prior
convictions show that Appellant admitted committing those acts. It is powerful
evidence which practically removes any concern that these allegations by the
previous victims might have been false.
Therefore, I concur in result only.
COUNSEL FOR APPELLANT :
Samuel N. Potter
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601
,*uyrrmQ C~Vurf of ~rufurhv
2008-SC-000301-MR
RANDY SPRINKLES
APPELLANT
ON APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY ALLEN LAY, JUDGE
NO . 07-CR-00047
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
On the Court's own motion, the Memorandum Opinion of the Court
rendered November 25, 2009, is hereby corrected by substituting pages 13 and
14 of the opinion as attached hereto, in lieu of pages 13 and 14 of the opinion
as originally rendered . Said correction does not affect the holding.
ENTERED : May _
, 2010.
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F JUSTICE
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