COMMONWEALTH OF KENTUCKY V. JESSE JAMES ENGLISH
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RENDERED:
JUNE 17, 1999
TO BE PUBLISHED
98-SC-333-DG
COMMONWEALTH
OF
ON REVIEW FROM COURT OF
97-CA-551
MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
96-CR-189
v.
JESSE
KENTUCKY
JAMES
APPELLEE
ENGLISH
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING
Appellee,
Jesse James English, was convicted in the
McCracken Circuit Court of two counts of sexual abuse in the
first degree, KRS 510.110(l)
(b)2,
imprisonment on each count.
The sentences were ordered to run
and was sentenced to five years
consecutively for a total of ten years.
The Court of Appeals
reversed the convictions and remanded for a new trial on the
ground that evidence of prior acts of sexual misconduct on the
part of Appellee was improperly admitted at trial.
discretionary
We
granted
review.
Appellee was convicted of sexually abusing his wife's two
grand-nieces, M.G., age six, and A.G., age four.
The
children
lived
with
spent
a
M.G.
their
mother
substantial
in
amount
the
of
same
time
neighborhood
visiting
in
as
Appellee
Appellee's
and
home.
testified that on one such occasion, both she and A.G. were
sitting
on
Appellee's
lap
when
he
reached
under
A.G.'s
clothing
and placed his right hand between her legs and on her "private
parts,"
then placed his left hand inside M.G.'s
underwear and
between
her
engaged
similar
activity
legs.
M.G.
with
testified
her
on
that
Appellee
"several" occasions
and
in
that
sometimes it would occur while she and Appellee were covered by a
blanket.
in
On each occasion, Appellee's wife was in the home, but
another
room
and
apparently
unaware
of
Appellee's
sexual
contact with the two children.
Appellee
summarized
did
the
not
testify.
contents
of
a
However,
recorded
a
interview
which took place shortly after his arrest.
interview,
pants.
statements:
have
"1
might
baby girl. . . .
Well,
realizing it. . . .
In response,
[M-G.],
During
Appellee
that
adult
he
made
the
following
but I've not the other little
maybe I did and didn't know it, not
If I did,
I don't remember it. . . .
I didn't do it on purpose. . . .
anything
Two
with
While we were watching TV, I might have and not
realized it. . . .
mean
detective
Appellee was asked whether he had ever put his hand
down M.G.'s or A.G.'s
did it,
police
If I
If I did it, I didn't
by it."
nieces
similarly
of
Appellee's
abused
them
wife,
and
they
were
T-N.,
testified
that
Appellee
D.B.
testified that when she was six or seven years old, Appellee
- 2 -
when
D.B
children.
touched her vaginal area on four different occasions while she
was visiting in his home.
Appellee's
wife
was
in
The abuse occurred on a couch while
the
kitchen.
T.N. testified that when she
was eight or nine years old, Appellee touched her vaginal area on
two different occasions while she was visiting in his home. On
each
occasion,
the abuse occurred on a couch while T.N. was
either asleep or pretending to be asleep.
present in the home on both occasions.
Appellee's
wife
was
Neither D.B. nor T-N.
testified to their present ages or to the dates on which they
were abused by Appellee.
However,
D.B. testified that she is
presently married and has a six month old son; and T.N. testified
that she, too,
thirteen,
is married and has children aged sixteen,
twelve and eleven.
The Court of Appeals concluded that
these instances of prior conduct were inferentially too remote in
time to the charged offenses to establish a "common scheme or
plan"
and,
therefore,
the evidence should have been suppressed.
KRE 404(b) (1) provides as follows:
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:
If offered for some other purpose, such as
(1)
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident;
. . . .
This Rule is virtually identical to Rule 404 (b) of the
Federal Rules of Evidence.
Even prior to the adoption of the
Kentucky Rules of Evidence, effective July 1, 1992, our courts
had
always
recognized
the
general
- 3 -
prohibition
against
proving
character
wrongful
or
criminal
acts.
198 S.W.2d
See,
predisposition
e.q.,
969 (1947).
by
evidence
of
prior
Jones v. Commonwealth, 303 Ky. 666,
However,
we
also
recognized
that
evidence
of prior conduct is admissible, if it is "probative of an element
of the crime charged . . . even though it may tend to prove the
commission
S.W.2d
of
other
crimes."
665, 674 (19901,
Specifically,
Sanders v. Commonwealth,
Ky.,
801
cert. denied, 502 U.S. 831 (1991).
we held that evidence of other crimes, wrongs or
acts was admissible if it tended to show "motive, identity,
absence of mistake or accident,
scheme or elan."
Pendleton v. Commonwealth, Ky., 685 S.W.2d
552 (1985) (emphasis added).
the "other
"plan" is
intent, or knowledge, or common
549,
"Common scheme" is not included in
purpose" exceptions listed in KRE 404(b) cl), though
specifically
included.
We do not interpret this
omission or variance in terminology as intending an alteration of
this
long-standing
purposes
are
legal
illustrative
concept,
rather
Commonwealth, Ky., 973 S.W.2d
U.S.
Lawson,
Michie
for "the
than
specifically
exhaustive."
13, 29 (19981,
, 119 S.Ct. 1056, 143 L.Ed.2d
listed
Tamme v.
cert. denied,
61 (1999) (quoting R.
The Kentucky Evidence Law Handbook, § 2.25, at 87 (3d ed.
1993)).
The "common scheme or plan" exception to the general rule of
exclusion first appeared in our jurisprudence in a dissenting
opinion in Ravmond v. Commonwealth, 123 Ky. 368, 96 S-W.
(1906).
515
"The rule is that where several felonies are connected
together as part of one common scheme and all tend to a common
- 4 -
end,
they
may
be
(Hobson,
C.J.,
Cr.R.
(N-Y.),
71
Evidence
S.W.2d
§
given
dissenting)
§
144).
310,
evidence."
(citing
1 Wigmore
Id
/I
People
96 S.W. at 518
v.
Stout,
4
Parker,
on Evidence § 304, and 1 Jones on
In Douslas v. Commonwealth, 307 Ky. 391, 211
156 (1948),
Evidence
in
our
predecessor
court,
quoting from 20 Am.Jur.
referred to a common scheme or plan as one
"embracing the commission of two or more crimes so related to
each other that proof of one tends to establish the others."
Id
L,
211 S.W.2d
at 157.
Thus,
"common scheme or plan" was
intended to refer to the fact that the charged offense was but
one of two or more related criminal acts.
The label "common scheme" was used under pre-existing
law to explain the admissibility of evidence revealing
the commission of uncharged crimes which were part and
parcel of a greater endeavor which included the charged
offense.
For example, in a case involving a charge of
armed robbery evidence is introduced to show that the
getaway car had been stolen by the defendant shortly
before the robbery; it is possible to see the auto
theft (the uncharged other crime) and the armed robbery
(the charged offense) as part of a common scheme.
Commentary to KRE 404(b) (l),
Final
Draft
(1989).
Evidence
Rules
Study
Committee,
It is not coincidental that RCr
6.18 permits
joinder of offenses in an indictment if inter alia they "are
based
on
the
same
acts
or
transactions
connected
constituting parts of a common scheme or plan,"
significant
factor
in
determining
whether
together
or
and that a
joinder
is
proper
is
the extent to which evidence of one offense would be admissible
in a trial of the other offense.
858 S.W.2d
Rearick v.
185, 187 (1993).
- 5 -
Commonwealth,
Ky.,
Obviously,
temporal
proximity
is
more
significant
with
respect to evidence offered to prove a common scheme or plan thar
to
evidence
offered
to
prove,
e-s.,
motive,
intent,
identity,
or absence of mistake or accident.
In
admission
of
which
seventeen
years
evidence
of
before
a
prior
the
wrongful
charged
offense,
North Carolina held in State v. Hipps,
1998),
cert.
remoteness
denied,
is
less
U.S.
act
the
significant
when
the
1119
issue
upholding
is
the
occurred
Supreme
501 S.E.2d
, 119 s.ct.
knowledge,
Court
of
625 (N-C.
(1999),
modus
that
operandi
than when the issue is whether both crimes arose out of a common
scheme or plan.
Id. at 642.
That
same
court
has
further
held
that even with respect to evidence of a common scheme or plan,
remoteness
is
relevancy
under
the
be
404,
Rule
to
but
in
the
balancing
conducting
State
v.
470 S.E.2d
condition
(Ind.
Rule
of
404
nor
Rule
Temporal
the weight of the evidence,
Grev v. State,
Breazeale,
714
P.2d
probativeness
required
by
f'or
Rule
(N-C. 1996); State v.
temporal
proximity
generally
is
held
to
as
215,
go
to
but not to render it inadmissible w
404 N.E.2d
1356,
mentions
remoteness
1348, 1353 (Ind. 1980); State v.
1362-63
APP-
1997).
thereof,
determining
Hicks v. State, 690 N.E.2d
846 (1986); State v. Lutcher,
aspect
test
297, 299
401
U.S.
Thus,
in
38 (N-C. 1996).
admissibility.
1997).
not
determining
Frazier, 476 S.E.2d
Neither
se.
considered
of
Howell,
220
factor
purpose
403.
a
a
(Kan.
19861,
700 So.2d
cert.
denied,
479
961, 970 (La. Ct.
if the prior wrongful act, or a particular
is so similar to the charged offense as to show a
- 6 -
modus operandi which tends to prove an element of the charged
offense,
remoteness
evidence
of
1243,
1246
the
alone
prior
(Cola.
does
not
require
misconduct.
Adrian
suppression
v. Peoole,
of
the
770 P.2d
1989).
In Huddleston v. United States, 485 U.S. 681, 108 S.Ct.
1496,
99 L.Ed.2d
described
the
particularly
771 (19881,
interplay
with
the
between
respect
to
United
the
Rule
States
Supreme
rules
of
relevancy,
404(b),
as
Court
follows:
Rules 401 and 402 establish the broad principle that
relevant evidence -- evidence that makes the existence
of any fact at issue more or less probable -- is
admissible unless the Rules provide otherwise.
Rule
403 allows the trial judge .to exclude relevant evidence
if, among other things, "its probative value is
substantially outweighed by the danger of unfair
prejudice."
Rules 404 through 412 address specific
types of evidence that have generated problems.
Generally, these latter Rules do not flatly prohibit
the introduction of such evidence but instead limit the
purpose for which it may be introduced.
Rule 404(b),
for example, protects against the introduction of
extrinsic act evidence when that evidence is offered
solely to prove character.
The text contains no
intimation, however, that any preliminary showing is
necessary before such evidence may be introduced for a
proper purpose.
If offered for such a proper purpose,
the evidence is subject only to general strictures
limiting admissibility such as Rules 402 and 403.
Id
A,
485 U.S.
Obviously,
at 687-88, 108 S.Ct.
the
evidence
of
at 1500.
Appellee's
prior
sexual
misconduct was not offered to prove the existence of a common
scheme or plan, i.e.,
that
the
charged
offenses
were
part
and
parcel of a greater endeavor which included the prior acts of
sexual
misconduct.
Instead,
the evidence was offered to show a
modus operandi for the purpose of proving motive,
knowledge,
intent,
and the absence of mistake or accident, i.e.,
- 7 -
contrary
to his statements to the police, Appellee knew what he was doing
(knowledge),
he did it on purpose (intent,
absence of mistake or
accident),
and he did it for his own sexual gratification
(motive).
In order to prove the elements of a subsequent offense
by evidence of modus operandi, the facts surrounding the prior
misconduct must 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)
accompanied by the same mens rea.
the acts were
If not, then the evidence of
prior misconduct proves only a criminal disposition and is
inadmissible.
Billinss v. Commonwealth, Ky., 843 S.W.2d
(1992); Adcock v. Commonwealth, Ky.,
702 S.W.2d
The facts related by D.B. and T.N. were
to the facts related by M.G. to
each
establish
a
890, 891
440 (1986).
sufficiently
modus
similar
operandi.
In
instance, the victim was a prepubescent female relative of
Appellee's
wife.
In fact, the
familial
relationship
with
victim was the same, except for the generational gap.
each
Each
incident occurred while the victim was a visitor in Appellee's
home and either on a couch or in a chair, presumably in a living
room area as opposed to, e.g., a bedroom.
Each
incident
while Appellee's wife was also present in the home.
each
incident
consisted
of
Appellee
touching
the
occurred
Finally,
victim's
vaginal
area.
The test of relevancy having been satisfied by proof of a
modus
operandi, the evidence of Appellee's prior sexual
misconduct was properly admitted unless its probative value was
- 8 -
substantially
403.
outweighed
the
danger
of
undue
prejudice.
KRE
This is the point at which the issue of temporal remoteness
becomes
a
factor
in
determining
Commonwealth, Ky., 943
not
the
to
lessen
sole
sexual
the
by
determining
the
probative
misconduct,
multiplicity
its
of
Robey v.
616, 618 (1997).
S.W.2d
admissibility.
However,
factor.
value
While
of
the
probativeness
victims,
the
temporal
evidence
is
is
remoteness
tends
Appellee's
prior
of
conversely
multiplicity
it
of
heightened
occurrences,
by
and
the fact that the abuse was perpetrated against members of
several
KY-,
generations
884 S.W.2d
of
the
same
657 (1994).
family.
The
Lear v.
balancing
of
Commonwealth,
the
probative
value
of such evidence against the danger of undue prejudice is a task
properly
reserved
suora,
the
sound
Commonwealth,
Rake v.
for
Ky.,
450
§ 2.10 III, at 59-60.
discretion
S.W.2d
The
of
abuse
of
discretion
arbitrary,
is
whether
standard
unreasonable,
principles.
5 Am.Jur.2d
of
review
unfair,
or
Aooellate
judge.
trial
whether
The test for
judge's
unsupported
Review
is
Partin v.
219, 222 (1996).
the
trial
527, 528 (1970); Lawson,
there has been an abuse of that discretion.
Commonwealth, Ky., 918 S.W.2d
the
decision
by
sound
was
legal
§ 695 (1995); cf
A
Kuorion v.
Fitzgerald, Ky., 888 S.W.2d
this test,
we conclude that the trial judge did not abuse his
discretion
in
sexual
admitting
the
evidence
misconduct.
- 9 -
of
679, 684 (1994).
Appellee's
prior
Applying
acts
of
Accordingly,
reversed
the
and
the
the decision of the Court of Appeals is
judgments
McCracken
Circuit
Graves,
Johnstone,
Lambert,
C.J.,
Stumbo, J.,
ATTORNEYS
FOR
Court
concurs
dissents
of
conviction
are
Keller
in
and
separate
APPELLANT:
Michael Harned
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY
40601-8204
FOR
Wintersheimer,
only
A. B. Chandler, III
Attorney
General
State Capitol
Frankfort, KY 40601
ATTORNEY
sentences
imposed
reinstated.
result
without
and
APPELLEE:
Franklin P. Jewel1
Jewel1 & Lemke
First Floor
235 South Fifth Street
Louisville, KY 40202-3232
- 10 -
without
opinion.
JJ.,
separate
concur.
opinion.
by
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