SEXTON (LUTHER WILBERT) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
LUTHER WILBERT SEXTON
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 05-CR-00267
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
CAPERTON, JUDGE: Luther Wilbert Sexton appeals his conviction of tampering
with physical evidence and disorderly conduct in the Pulaski Circuit Court. Sexton
argues that it was error for the court to allow his prior convictions for sexual
Senior Judge David C. Buckingham, sitting as Special Judge by Assignment of the Chief
Justice pursuant to Section 110 (5) (b) of the Kentucky Revised Statutes (KRS) 21.580.
offenses into evidence, and that it was error to deny his motion for a directed
verdict. Finding no error, we affirm.
Sexton was convicted of tampering with physical evidence under
Kentucky Revised Statutes (KRS) 524.100 and disorderly conduct, second degree,
under KRS 525.060, after a jury trial on November 20, 2006. Sexton then
stipulated to the offense of persistent felony offender (PFO), first degree, and was
sentenced to twelve (12) years imprisonment for the conviction of tampering with
physical evidence enhanced by PFO in the first degree.
On July 21, 2005, the Pulaski County Public School Child Care
Program took approximately twenty-four (24) children, ages five (5) to twelve
(12), to the General Burnside Island State Park swimming pool. While there, the
Director of the Program, Brenda McDowell, noticed a man crouched down, not
that far from the pool, whom appeared to be videotaping the children on a
camcorder. When McDowell and parents at the pool noticed the man, he
immediately left in his pickup truck. One of the parents at the pool called the
police after noting the make, model, and license plate number of the truck.
Pulaski County Sheriff’s Deputy Troy McClin responded and, after
acquiring the address through the license plate check, went to Sexton’s home.
Deputy McClin asked Sexton if he had been at the Burnside pool, which Sexton
denied. When Deputy McClin informed Sexton that his truck had been seen at the
pool, Sexton recanted his prior denial. Sexton denied videotaping at the pool and
then recanted and admitted to videotaping a houseboat. Upon request, Deputy
McClin briefly viewed the alleged recording and found that it contained only
television recordings and no footage of either children or a houseboat. Thereafter,
Deputy McClin contacted the detective in charge of the investigation. The officers
obtained a search warrant for Sexton’s home and an arrest warrant for the crime of
disorderly conduct for his conduct at the pool. The officers learned that Sexton
was on bond for three counts of sexual abuse in Wayne County and had prior sex
offender convictions in Florida.
Deputy McClin returned to Sexton’s home approximately two (2)
hours after the initial encounter, to serve the warrants. The search of the home
failed to produce the videotape previously viewed by Deputy McClin. Sexton
refused to tell the police where the videotape was located. Based on the Sexton’s
continuing refusal, Deputy McClin charged Sexton with tampering with physical
Prior to trial, the Commonwealth submitted notice of their intention to
introduce (KRE) 404(B) evidence. In their notice, the Commonwealth referenced
that the charge of tampering with physical evidence and stated “[s]pecifically, the
Commonwealth intends to show at trial that Defendant videotaped children at
Burnside Island Pool. The Commonwealth will show that the Defendant was in
the act of committing Voyeurism and/or Video Voyeurism.” To show motive, the
Commonwealth intended to introduce both evidence that Defendant was a
registered sex offender with convictions in other states and that video footage
taken by Defendant was used in those proceedings. Further, the Commonwealth
intended to introduce evidence that Defendant was out on bond in Wayne County,
Kentucky and that if the videotape had contained images of children then it would
have been used against Defendant in a bond revocation proceeding. The
Commonwealth asserted that the aforementioned evidence tended to show motive,
modus operandi, intent, plan, knowledge, or absence of mistake.
After two hearings on the evidentiary issue, the court entered a written
order on November 20, 2006,2 that evidence of prior crimes, given through the
testimony of investigating officers, was admissible. The court stated that the
evidence was relevant and the basis for reasonable inferences bearing on motive
and absence of mistake, as well as intent for the tampering charge. The court ruled
that the balancing test of KRE 403 was met and that proper admonitions to the jury
would be given.
Sexton’s first claim of error is the court improperly admitted KRE
404(b) evidence and the Commonwealth’s theory of voyeurism did not relate to the
admitted evidence. We disagree.
In assessing an evidentiary ruling under KRE 404(b), the trial court
plays a unique role as the gatekeeper of evidence. As such, we may reverse a trial
court’s decision to admit evidence only if the decision was an abuse of discretion,
i.e., one that was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. See Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006),
This was on the Defendant’s motion to reconsider the courts prior ruling allowing evidence to
be introduced under KRE 404(b).
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), and Clark v.
Commonwealth, 223 S.W.3d 90 (Ky. 2007).
In assessing the admissibility of prior crime evidence, KRE 404(b)(1)
provides a well-defined exception to the exclusionary nature of the rule as
concerns prior crimes. Commonwealth v. Buford, 197 S.W.3d 66, 70 (Ky. 2006).
KRE 404(b) (1) allows introduction of prior crime evidence if offered for “proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.”
We agree with the trial court that the evidence of Sexton’s prior
crimes, as testified to by the investigating officers, tends to show motive for the
tampering charge. Sexton’s prior conviction also involved usage of videotape
evidence against him.3 This prior similar experience certainly gave him motive,
knowledge, and absence of mistake for tampering with the physical evidence that
might be used in the current proceeding. Sexton was well aware that a videotape
of children could be used to incriminate him in Wayne County. Sexton’s bond
conditions from Wayne County4 provided knowledge and absence of mistake for
tampering with physical evidence.
Videotape footage shot by Sexton was used to convict him in Florida. The footage showed
minors playing on a beach with Sexton zooming in on their genitals.
Sexton was directed not to break any laws in Kentucky and the trial courts order notes that the
August 20, 2004, order of the Wayne Circuit Court forbade Sexton from being around children.
The Assistant Commonwealth’s Attorney for Wayne County testified that if the videotape of
children at the pool filmed by Sexton had been found, it would have been used to revoke
If evidence is admissible under KRE 404(b), it may still be excluded
under the KRE 403 balancing test. Bell v. Commonwealth, 875 S.W.2d 882(Ky.
1994). An appellate court will only reverse the evidentiary ruling if an abuse of
discretion has occurred. Barnett v. Commonwealth, 979 S.W.2d 98 (Ky. 1998).
We agree with the trial court that the probative value of the prior crimes evidence
was not substantially outweighed by the danger of undue prejudice, especially
given the multiple admonitions to the jury by the trial court. See KRE 403 and
Matthews v. Commonwealth, 163 S.W.3d 11 (Ky. 2005). Therefore, we do not
find that the trial court abused its discretion in admitting the evidence.
Sexton’s second claim of error is that the trial court improperly denied
his motion for a directed verdict because the Commonwealth failed to prove the
elements of tampering and disorderly conduct. Sexton argues that the
Commonwealth failed to prove that he possessed evidence associated with a crime
that would lead to proceedings against him and, thus, the Commonwealth could not
prove that he destroyed, concealed, or removed physical evidence. Sexton argues
that he had no way of knowing that an investigation was proceeding against him
because Deputy McClin never indicated he would be back after the initial viewing
of the videotape. Sexton’s argument is not well taken.
To be convicted of tampering with physical evidence, KRS 524.100
1) A person is guilty of tampering with physical evidence
when, believing that an official proceeding is pending or
may be instituted, he:
(a) Destroys, mutilates, conceals, removes or alters
physical evidence which he believes is about to be
produced or used in the official proceeding with intent to
impair its verity or availability in the official proceeding;
(b) Fabricates any physical evidence with intent that it be
introduced in the official proceeding or offers any
physical evidence, knowing it to be fabricated or altered.
(2) Tampering with physical evidence is a Class D
The Commonwealth did not have to prove that criminal evidence was
possessed by Sexton. The Commonwealth only had to prove that Sexton believed
that the evidence may be used in an official proceeding and that Sexton intended to
impair the availability of such evidence. See Com. v. Nourse, 177 S.W.3d 691
(Ky.2005) and Leslie W. Abramson Ky. Prac. Substantive Crim. L. § 8:46 (20072008). Sufficient evidence was presented at trial for the jury to find that Sexton
believed that the videotape constituted evidence that would be used against him in
either the Wayne County bond revocation hearing or in a separate proceeding in
Pulaski County. Specifically, Sexton stated that he was not at the park, then
recanted and stated he was at the park but was not videotaping, they again recanted
and stated he was videotaping. Sexton’s equivocal statements combined with the
officers observations of the video footage, which did not show what Sexton
purported to be on the videotape, certainly gave the videotape evidentiary value.
The officer could neither confirm nor deny the allegations made against Sexton.
This videotape shown to the officer was then either inculpatory or exculpatory.
The statute does not speak in terms of only inculpatory evidence; it speaks in terms
of physical evidence in an official proceeding. The statute also prohibits tampering
with exculpatory evidence.
Given the facts of the case, Sexton was on notice that the videotape
was evidence once he identified it to the officer as the videotape he had used at the
park. First, an investigation was initiated by the officer and Sexton was on notice
thereof when he presented himself at Sexton’s door and viewed the videotape.
Sexton complains that he was not told by the officer the investigation was
continuing; however, neither was he told the investigation was completed. Second,
Sexton was well aware of the evidentiary value of a videotape; such was used to
convict him in Florida. Lastly, Sexton offered no excuse for the absence of the
videotape when the officers arrived with a search warrant but, instead, flatly
refused production of it. The crime of tampering with physical evidence was then
As to Sexton’s claim that he was entitled to a directed verdict, the
defendant is only entitled to a directed verdict if under the evidence as a whole, it
would be clearly unreasonable for a jury to find guilt. Commonwealth v. Benham,
816 S.W.2d 186, 187 (Ky. 1991) citing to Commonwealth v. Sawhill, 660 S.W.2d 3
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
Id. Based on the appellate review standard articulated in Benham and the
applicable statute,5 we do not find error in denying the motion for directed verdict.
The Commonwealth presented sufficient evidence to survive a directed verdict
motion by Sexton.
We hereby affirm the judgment of the Pulaski Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James C. Maxson
Assistant Attorney General
We likewise do not find error in the denial of Sexton’s directed verdict motion as to the
disorderly conduct charge.