COMMONWEALTH OF KENTUCKY VS. SMITH (BRETT A.)
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RENDERED: DECEMBER 22, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2016-CA-000100-MR COMMONWEALTH OF KENTUCKY v. APPELLANT APPEAL FROM HENRY CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE ACTION NO. 14-CR-00015 BRETT A. SMITH APPELLEE AND NO. 2016-CA-000101-MR COMMONWEALTH OF KENTUCKY v. APPELLANT APPEAL FROM HENRY CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE ACTION NO. 14-CR-00017 LAURA SUSANNE PIKE APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: ACREE, CLAYTON AND J. LAMBERT, JUDGES. ACREE, JUDGE: The Commonwealth of Kentucky brings these appeals, which have been designated to be heard together, from orders of the Henry Circuit Court denying its motions to introduce evidence of prior bad acts against the appellees Brett Smith and Laura Pike. At issue is whether the trial court correctly ruled that the evidence was inadmissible because it did not meet the modus operandi exception to Kentucky Rules of Evidence (KRE) 404(b). On February 28, 2014, the Henry County Grand Jury indicted Brett Smith on one count of sodomy in the first degree, and three counts of sexual abuse in the first degree. His girlfriend, Laura Pike, was indicted on the same day on two counts of incest, two counts of sodomy in the first degree, and one count of sexual abuse in the first degree. The charges stemmed from substantially the same course of conduct towards the victim, M.F., who is the biological daughter of Pike. The evidence relating to M.F. consisted of her forensic interview in which she related that Smith orally sodomized her and forced her to orally sodomize him. The sexual contact occurred in the home shared by Smith, Pike and M.F. Smith and Pike participated in the abuse of M.F. simultaneously. M.F. revealed that the abuse began when she was nine years of age and continued until she was eleven, when she was removed from the home. -2- M.F.’s older sister, D.F., who is also the biological daughter of Pike, disclosed that she was forced to have sex with Smith and that her mother was present and involved. She stated that she was forced to orally sodomize both Pike and Smith, and that Pike and Smith would orally sodomize her and have sexual contact with her. D.F. also stated that Smith raped her on at least one occasion, although the Commonwealth does not intend to elicit testimony regarding the rape at the trial. These events occurred in the home of Smith and Pike where D.F. lived with her mother. The alleged abuse committed against D.F. occurred in Jefferson County. The Commonwealth sought to admit D.F.’s testimony under the “modus operandi” exception to the strictures against the admission of evidence of prior bad acts found in KRE 404(b). The trial court denied the motion and this appeal by the Commonwealth followed. The Commonwealth is proceeding pursuant to Kentucky Revised Statutes (KRS) 22A.020(4) which permits an interlocutory appeal to be taken “by the state in criminal cases from an adverse decision or ruling of the Circuit Court,” under certain conditions. The rationale underlying the statutory provision is that the Commonwealth is precluded from filing an appeal if a defendant is acquitted. “It is, indeed, only fair to the public, and proper for its protection, because otherwise the guilty might escape by an acquittal resulting from legal errors[.]” Ballard v. Commonwealth, 320 S.W.3d 69, 72 (Ky. 2010) (internal citation omitted). -3- Our standard when reviewing a question of admissibility of evidence is whether the trial court abused its discretion. Johnson v. Commonwealth, 105 S.W.3d 430, 438 (Ky. 2003). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). KRE 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Such evidence may, however, be admissible “[i]f offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]” KRE 404(b)(1). The Kentucky Supreme Court has recognized other non-enumerated exceptions to KRE 404(b)’s general prohibition against the introduction of prior bad acts evidence; one of these exceptions is if the evidence is probative of modus operandi. Newcomb v. Commonwealth, 410 S.W.3d 63, 73 (Ky. 2013). “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. The trial court ruled that the evidence relating to the elder child, D.F., was not sufficiently strikingly similar to that of M.F. to be admissible. The trial court acknowledged that both victims have the same relationship to Laura Pike, that of mother and daughter, but pointed out that the victims were not the same age -4- when the abuse occurred (M.F. was nine years of age when the abuse began; D.F. was fourteen). The trial court described M.F. as “very unaware” of what was happening to her, and reluctant to participate. M.F. stated that she declined Smith and Pike’s advances and asked her mother to stop. The trial court noted that D.F. was asked by Smith and Pike to participate and declined many times, but eventually complied in order to protect her younger siblings and her mother. The trial court also found that the D.F.’s allegations of frequency and the type of abuse (full sexual intercourse) were not sufficiently similar enough to M.F.’s allegations. But there are numerous compelling factors which support a modus operandi exception for the admission of D.F.’s evidence. First, the victims are both the biological daughters of Pike. Second, the abuse occurred when they were not of an identical age, but certainly old enough to engage in “participatory sexual behavior” with Smith and Pike. Woodlee v. Commonwealth, 306 S.W.3d 461, 465 (Ky. 2010), as modified on denial of reh’g (Apr. 22, 2010). Third, the abuse occurred during overlapping periods; the abuse against D.F. occurred from 2009 to 2011 while the abuse against M.F. occurred from 2010 to 2012. Fourth, and most significantly of all, Smith and Pike allegedly acted in concert to abuse the children. This fact presents a clear contrast to Woodlee, a case in which the Commonwealth unsuccessfully argued as a point of similarity to support a modus operandi exception that the defendant, who was accused of sexually abusing an infant and a four-year-old on separate occasions, was alone with his victims when he abused them. The Kentucky Supreme Court rejected the Commonwealth’s argument, -5- stating in part that “it is not peculiar or distinct that Appellant was alone with both victims when he allegedly abused them. In fact, it would seem very peculiar or distinct indeed for a perpetrator to commit sexual abuse without being alone with the victim. . . . Virtually all sexual offenses occur when the perpetrator and victim are alone.” Woodlee, 306 S.W.3d at 465 (emphasis added). Thus, the allegation that Smith and Pike were not individually alone with their victims is sufficiently peculiar or distinct to suggest a modus operandi; the fact that they acted together to commit the alleged acts of abuse against the victims is virtually unique and suggestive of a “signature crime.” Clark v. Commonwealth, 223 S.W.3d 90, 97 (Ky. 2007). Fifth, the nature of the acts of abuse committed was similar: Smith orally sodomized the girls and forced them to orally sodomize him; Smith and Pike “fingered” their victims; Smith and Pike both asked the girls to join them in sexual activities. Although the trial court correctly noted that unlike M.F., D.F. alleged that she was raped, the Commonwealth is not planning to introduce that portion of her statement into evidence. Sixth, the abuse was committed in the home rather than elsewhere except on one occasion with M.F. in a motel room. Under these circumstances, we find the trial court’s ruling that D.F.’s evidence is inadmissible under KRE 404(b) was an abuse of discretion. Smith and Pike assert in their response to the Commonwealth’s interlocutory appeal that such action has deprived them of their right to a speedy trial. They rely on Commonwealth v. Blincoe, 33 S.W.3d 533 (Ky. App. 2000). In Blincoe, the Commonwealth filed an interlocutory appeal after a key witness -6- invoked his Fifth Amendment rights. While that appeal was pending, the trial court entered an order stating that the case would be dismissed in sixty days if the Commonwealth did not proceed to trial. The Commonwealth refused to proceed to trial until the interlocutory appeal was decided, and the trial court accordingly dismissed the case without prejudice after sixty days had elapsed. The appeal that is the subject of Blincoe was taken by the Commonwealth from the final order of the circuit court dismissing the indictment against Blincoe. A panel of this Court held that the trial court did not err in dismissing the indictment because the Commonwealth would be able to obtain a new indictment if it prevailed in its interlocutory appeal. In this case, Smith and Pike responded to the Commonwealth’s notice to continue the trial pending the resolution of this appeal by opposing the continuance and demanding the right to a speedy trial. The record before us does not indicate whether the trial court ruled on these matters, and in any event, Smith and Pike are not appealing or cross-appealing from any adverse final action of the trial court. Their arguments regarding the potential violation of their right to a speedy trial is an issue which may be addressed on direct appeal after the entry of final judgments in their cases. We note also the Kentucky Supreme Court’s holding in a case in which the appellant argued that an interlocutory appeal had violated his right to a speedy trial which is also applicable to these cases. The Court said “[a]ny delay attributable to time consumed by the interlocutory appeal does not count toward -7- Appellant’s speedy trial claim. The appeal was neither tangential nor frivolous. The fact that the Commonwealth prevailed on the appeal is prima facie proof of the reasonableness of taking the appeal.” Tamme v. Commonwealth, 973 S.W.2d 13, 23 (Ky. 1998), as modified on denial of reh’g (Sept. 3, 1998) (citing United States v. Loud Hawk, 474 U.S. 302, 315–16, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986)). Smith and Pike also contend that D.F.’s evidence does not meet the requirements for an interlocutory appeal under KRS 22A.040 as elucidated in Eaton v. Commonwealth, 562 S.W.2d 637, 639 (Ky. 1978): “Unless the constitutional right to a speedy trial were unduly threatened, we see no reason why an interlocutory ‘ruling’ entered prior to trial, if it decides a matter vital to the Commonwealth’s case, could not be reviewed by appeal.” Id. They contend that D.F.’s evidence is not vital to the Commonwealth’s case. We disagree. The evidence at issue is highly relevant and probative, especially in light of the fact that the prosecution’s witness is a child who was nine years of age at the time the alleged crimes were committed. The circuit court’s orders denying the Commonwealth’s motions in both cases to introduce evidence of prior bad acts with D.F. is reversed and both cases are remanded for further proceedings in accordance with this opinion. ALL CONCUR. -8- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES: Andy Beshear Attorney General of Kentucky Rob Eggert J. Casey McCall Louisville, Kentucky Joshua E. Clubb Special Assistant Attorney General LaGrange, Kentucky -9-
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