JOHN C. BROOKS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 18, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001132-MR
JOHN C. BROOKS
APPELLANT
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR., JUDGE
ACTION NO. 00-CR-00019
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
John C. Brooks appeals his convictions of
first-degree sexual abuse1 and second-degree sexual abuse.2
Because the trial court erred in admitting prior uncharged
sexual acts, we reverse the judgment and remand for a new trial.
Brooks, age 57, lived with his sister, Donna Gamble,
and her family, which included three foster type children and a
mentally challenged adult female, whom Donna had raised and
1
2
KRS 510.110.
KRS 510.120.
cared for.
It was alleged that on February 15, 2000, Brooks
entered the bedroom shared by the mentally challenged adult,
C.B., who was in her thirties, and one of the children, an
eleven-year old girl, R.B.
Brooks allegedly put his hand down
C.B.’s pants and fondled her.
Next, he allegedly put his hand
down R.B.’s underpants and fondled her and penetrated her vagina
with his finger.
Brooks was indicted May 8, 2000.
A competency hearing
regarding C.B. and R.B. was held on February 22, 2002, and both
were found competent to testify.
A jury trial was held on
February 27, 2002, wherein Brooks was convicted of first-degree
sexual abuse of R.B., a class D felony, and second-degree sexual
abuse of C.B., a class A misdemeanor.
Brooks was sentenced to
five years for the felony, and twelve months on the misdemeanor.
This appeal followed.
On appeal, Brooks first argues that the trial court
erred in finding C.B. competent to testify, on grounds that it
was not demonstrated that she understood the obligation of a
witness to tell the truth.3
KRE 601(b)(4) disqualifies a witness
to testify if he or she lacks the capacity to understand the
obligation of a witness to tell the truth.
3
Brooks does not challenge the competency of R.B. on appeal.
2
C.B., who is mentally challenged, was 39 years old at
the time of the February 22, 2002, competency hearing.4
asked about her age, she said “I’ll be thirty-eight.”
When
She knew
her address, and knew the names of some of the people she lived
with.
She had difficulty understanding many of the questions
asked of her, was easily confused, and frequently gave answers
which did not pertain to the questions.
However, when given
simple examples, she was able to demonstrate that she did
understand the difference between the truth and a lie.
For
example, she knew her name was not “Monica” (although she had a
friend with that name), and knew that it would not be true if
someone said she lived in Kalamazoo, because she lived in
Irvine.
After the Commonwealth had demonstrated, in this way,
that C.B. knew the difference in truth and lie, defense counsel
took the interview to the next step and asked C.B. if it was
good or bad when you tell a lie.
C.B. knew that it was “bad” to
tell a lie, although she could not give any consequences of
telling a lie.
At the conclusion of the hearing, defense
counsel expressed concern that the last prong of the competency
test, that a witness understand the obligation to tell the truth
(KRE 601(b)(4)), was not satisfied.
The court disagreed and
found C.B. competent.
4
Per the trial testimony of Donna Gamble, who gave C.B.’s date of birth as
March 14, 1962.
3
KRE 601 creates a presumption of competency, subject
to exceptions.
persons.
The presumption extends to mentally handicapped
See Robert G. Lawson, The Kentucky Evidence Law
Handbook, §3.05[3] (4th ed. 2003).
The presumption of competency
is overcome per KRE 601(b)(4), if the person lacks the capacity
to understand the obligation of a witness to tell the truth.
We
agree with the appellant that merely knowing the difference
between the truth and a lie is not sufficient to satisfy KRE
601(b)(4), which requires that a witness understand the
obligation to tell the truth.
A trial court’s determination of competency will not
be disturbed absent an abuse of discretion.
Pendleton v.
Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002).
An appellate court
may consider a trial court’s competency determination from a
review of the entire record.
Kentucky v. Stincer, 482 U.S. 730,
743, 107 S. Ct. 2658, 2666, 96 L. Ed. 2d 631 (1987); Payne v.
Commonwealth, 623 S.W.2d 867, 878 (Ky. 1981); Hendricks v.
Commonwealth, 550 S.W.2d 551, 554 (Ky. 1977).
Because of C.B.’s mental handicap, neither the trial
court nor counsel had an easy task in this case.
However, the
examination of C.B. at the competency hearing demonstrated that
she knew the difference between the truth and a lie, which is
the first step in showing an obligation to speak the truth.
Secondly, C.B. also appeared to understand the concept of good
4
and bad, and knew that it was “bad” to tell a lie.
Further, the
record, including C.B.’s trial testimony, does not reveal any
facts which prove that C.B. did not understand the obligation of
a witness to tell the truth.
We are unable to say the trial
court’s finding was an abuse of discretion.
However, in light
of the fact that this case is being remanded, we recognize that
on retrial the defense will have another opportunity to explore
the issue in depth.
Brooks also contends that the trial court erred in
allowing evidence of prior bad acts.
On May 25, 2001, the
Commonwealth filed a Notice of Intent to Use KRE 404(b)
Evidence, wherein the Commonwealth indicated it planned to offer
evidence of prior uncharged sexual acts committed by Brooks upon
Donna Gamble, another sister, P.S., and his daughter, J.E.
The
trial court denied Brooks’s motion to exclude this evidence.5
Brooks’s sister, P.S., was 46 years old at the time of
trial.
She testified that Brooks, her older brother, began
abusing her when she was three or four years old.
She testified
that he would fondle her and that there was “sexual
penetration”, including penetration with his fingers, and that
he stopped when she was 14 because she had started menstruating.
P.S. provided no other details regarding the alleged incidents.
5
Although the Commonwealth had given notice that it would call Donna Gamble
to testify as to abuse by Brooks, she was not asked about this at trial.
5
Brooks’s daughter, J.E., age 37 at the time of trial,
testified that when she was nine or ten, Brooks went into the
bathroom when she was taking a bath and showed her how to use a
douche.
Later, he would have her sit on his lap while he had an
erection until it subsided.
When she was about twelve years
old, he started touching and licking her vagina.
As she got
older, he would make her pull her pants down so he could “look”.
J.E. testified that it was not until she was 16 years old that
she realized this was not right.
KRE 404(b) provides:
Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible:
(1) If offered for some other purpose, such
as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident;
“[E]vidence of criminal conduct other than that being
tried is admissible only if probative of an issue independent of
character or criminal predisposition, and only if its probative
value on that issue outweighs the unfair prejudice with respect
to character.”
(Ky. 1992).
Billings v. Commonwealth, 843 S.W.2d 890, 892
“Trial courts must apply [KRE 404(b)] cautiously,
with an eye towards eliminating evidence which is relevant only
6
as proof of an accused’s propensity to commit a certain type of
crime.”
Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994).
The degree of similarity between the charged and the
uncharged acts is a critical factor in establishing a direct
relationship independent of character.
892.
Billings, 843 S.W. at
It is not sufficient that the charged and uncharged acts
are both of a sexual nature.
657 (1994).
Lear v. Commonwealth, 884 S.W.2d
Two acts involving sexual crimes are not
necessarily “similar”.
Billings 843 S.W.2d at 893.
With regard
to the degree of similarity required, our Supreme Court has
explained:
[C]ollateral bad acts evidence offered to
prove corpus delicti should satisfy the same
criteria as such evidence offered to
indicate modus operandi. That is, evidence
of other acts of sexual deviance offered to
prove the existence of a common scheme or
plan 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), citing
Billings 843 S.W.2d at 893.
See also, Gray v. Commonwealth, 843
S.W.2d 895 (Ky. 1992).
We agree with Brooks that the trial court erred in
admitting the testimony of prior bad acts through P.S. and J.E.
The uncharged acts do not show a “striking similarity”
indicative of a modus operandi relevant to the charged acts.
Gray, 843 S.W.2d at 897; Billings, 843 S.W.2d at 893-894.
7
While
the testimony of P.S. alleged generally similar acts, there was
shown no similarity in details (P.S. gave none concerning
location, time, and method) as required to demonstrate modus
operandi.
See Billings, 843 S.W.2d at 893.
Further, as in
Gray, “any probative worth which that [general] resemblance
might endue is diminished by the significant temporal remoteness
of those events.”
Gray, 843 S.W.2d at 895.
The evidence of
prior bad acts merely showed Brooks’s character and
predisposition to commit a crime, and was, therefore,
inadmissible.
Billings, 843 S.W.2d 890.
Because the error was
prejudicial, it is necessary to remand for a new trial.
The remaining allegations of error are either not
likely to occur upon retrial or have become moot.
For the foregoing reasons, the judgment of the Estill
Circuit Court is reversed and the matter is remanded for a new
trial.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Assistant Public Advocate
Frankfort, Kentucky
Brian T. Judy
Assistant Attorney General
REPLY BRIEF FOR APPELLANT:
Gregory D. Stumbo
Attorney General of Kentucky
Frankfort, Kentucky
Astrida L. Lemkins
Assistant Public Advocate
Frankfort, Kentucky
8
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