TODD J. VAUGHN v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001449-MR
TODD J. VAUGHN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH ABRAMSON, JUDGE
ACTION NO. 99-CR-000259
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
MILLER, JUDGE:
Todd J. Vaughn brings this appeal from a June 9,
1999, judgment of the Jefferson Circuit Court.
We reverse.
In January, 1999, a Jefferson County Grand Jury
indicted appellant upon one count of first-degree rape (Kentucky
Revised Statutes (KRS) 510.040), two counts of first-decree
sodomy (KRS 510.070), and three counts of first-degree sexual
abuse (KRS 510.110).
On April 23, 1999, a jury found appellant
guilty of one count of sexual misconduct (KRS 510.140).
The
circuit court entered judgment fixing appellant's sentence at
three months in jail, probated for a period of two years.
appeal follows.
This
Appellant contends the circuit court committed error by
excluding evidence of the victim's prior accusations of rape.
Appellant sought to introduce evidence that the victim had
previously accused other people of raping her.
The trial court
excluded such evidence relying upon Hall v. Commonwealth, Ky.
App., 956 S.W.2d 224 (1997).
In Hall, the court determined a victim's unrelated
allegations of rape against third parties were properly excluded.
The court fashioned the following rule to determine when
unrelated allegations of rape should be admitted:
If the unrelated accusations are true, or
reasonably true, then evidence of such is
clearly inadmissible primarily because of its
irrelevance to the instant proceeding.
Additionally, unrelated allegations which
have neither been proven nor admitted to be
false are properly excluded. If demonstrably
false, the evidence still must survive a
balancing test, i.e., the probative value
must outweigh the prejudicial effect.
Id. at 227.
Appellant, however, contends Hall is distinguishable
as it dealt with only subsequent allegations of rape.
disagree.
We
The rule in Hall is clearly broad enough to encompass
both prior and subsequent allegations of unrelated rape.
Indeed,
some of the cases cited by Hall involve prior unrelated rape
allegations.
As such, we do not think the circuit court erred by
excluding from evidence the victim's prior allegations of rape.
Appellant also asserts the circuit court committed
reversible error by denying him the opportunity to properly
impeach Commonwealth's witness, Victor Bradley.
Specifically,
appellant sought to introduce evidence of Bradley's recent arrest
for domestic violence upon a third party and of Bradley's
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intimate relationship with victim.
The record, however,
indicates the jury already heard evidence that Bradley was the
victim's boyfriend.
As to Bradley's recent arrest, appellant
relies upon Kentucky Rules of Evidence (KRE) 404b.
We simply do
not believe KRE 404b relevant to impeachment of a mere witness;
rather, we think it only applicable to parties to the case.
Even
if KRE 404b were applicable, we do not think Bradley's arrest
would be admissible thereunder.
843 S.W.2d 895 (1992).
See Gray v. Commonwealth, Ky.,
Hence, we perceive no error.
Appellant lastly argues the circuit court erred by
instructing the jury upon sexual misconduct.
Appellant was
originally indicted upon first-degree rape, first-degree sodomy,
and first-degree sexual abuse.
The Commonwealth argues that
sexual misconduct was a lesser included offense of the indicted
crimes, thus the instruction was proper.
We must disagree.
In Cooper v. Commonwealth, Ky., 550 S.W.2d 478, 479
(1977), the Court held:
[T]he basic purpose of KRS 510.140 is to
preserve the concept of statutory rape and
statutory sodomy. When read in conjunction
with the rape and sodomy statutes, KRS
510.140 is designed primarily to prohibit
nonconsensual sexual intercourse or deviate
sexual intercourse under two circumstances:
(i) when the victim is 14 or 15 and the
defendant is less than 21; or (ii) when the
victim is 12, 13, 14, or 15 and the defendant
is less than 18 years of age. In this
context the ages of the defendant and the
victim are critical. Force is not an element
of this offense. The victim is statutorily
incapable of consent. However, mistake as to
age is a defense under KRS 510.030.
Indeed, in Spencer v. Commonwealth, Ky., 554 S.W.2d 355, 357
(1977), the Court specifically concluded that KRS 510.140 “is not
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applicable where both parties are over 21 years of age and
neither was physically or mentally incapacitated at the time of
the occurrence.”
In the case sub judice, the evidence
reflects
that the victim and appellant were both over the age of twentyone and that neither were “physically or mentally incapacitated”
at the time of the alleged rape.
As such, we are compelled to
conclude the circuit court committed reversible error by
instructing the jury upon sexual misconduct.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Tim McCall
Louisville, Kentucky
A. B. CHANDLER III
Attorney General of Kentucky
Frankfort, Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
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