ROBERT DENZIL NEWSOME V. COMMONWEALTH OF KENTUCKY
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THIS OPINION IS DESIGNA TED "NOT TO BE
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
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CASE INANY COURT OF THIS STA TE.
RENDERED : FEBRUARY
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2001zaoi-scSC-0672os~z--TG
ROBERT DENZIL NEWSOME
ON TRANSFER FROM THE COURT OF APPEALS
1999-CA-1641-MR
MARTIN CIRCUIT COURT NO . 95-CR-00037
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Robert Denzil Newsome, was convicted in the Martin Circuit
Court of first-degree rape and first-degree sexual abuse. He was sentenced to a total of
twenty years imprisonment . Appellant filed a notice of appeal in the Court of Appeals
and the case was subsequently transferred to this Court on jurisdictional grounds.' The
sole issue presented is whether the trial court erred in admitting the evidence of
Appellant's prior violent acts against persons other than the victim .
During the early morning hours of March 13, 1995, Appellant entered the
bedroom of S .N ., his seventeen-year-old daughter . S .N . testified that he laid down on
her bed and began rubbing her breasts . She then jumped up from the bed and hid in
the bathroom until she believed Appellant had left the bedroom . S.N . stated that a few
hours later, Appellant entered her room again wearing no clothes. Appellant ordered
' Ky. Const. § 110(2)(b) .
S.N. to remove her pants and then raped her. S .N . testified that at some point during
the rape, Appellant placed his hands near her throat as if he might strangle her and that
she believed he was going to kill her. Following the rape, Appellant retrieved some
toilet paper and gave it to S.N. so she could clean herself. After doing so, she placed
the tissue in her bedroom trash can. Appellant thereafter left S.N .'s room.
While waiting for the school bus later that morning, S .N . informed one of
her brothers that Appellant had raped her and that she was not coming home . Once at
school, S .N . informed a friend of the rape . The friend reported the rape to the school's
secretary, who immediately called the police. The police subsequently collected
samples from both S .N . and Appellant for use with the rape test kits . The kits were sent
to the Kentucky State Police Central Forensic Laboratory, and the results indicated that
Appellant's DNA matched a sample taken from the tissue found in S.N.'s trash can.
On November 22, 1995, the Martin County Grand Jury indicted Appellant
for First-Degree Rape, Incest,2 and First-Degree Sexual Abuse . On April 1, 1999, the
Commonwealth filed a Notice of Intent "to introduce evidence of domestic violence acts
by the Defendant herein which acts were observed by the victim and serve, in part, as a
basis for her fear and intimidation by the Defendant." At trial, the trial court held an in
camera hearing to ascertain the nature and relevance of the evidence . Only S .N .
testified during the hearing . S .N. stated that although Appellant had never hit either her
or her two brothers, she remembered witnessing or hearing about Appellant's physical
abuse of her mother and stepbrother. However, neither S.N.'s mother nor stepbrother
was living in the house at the time of the rape . In fact, S .N . testified that she had not
2 By Order entered April 29, 1999, Count II (Incest) of Appellant's indictment was dismissed pursuant to
the Commonwealth's motion .
2
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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 ; or
(2) if so inextricably intertwined with other evidence essential
to the case that separation of the two could not be
accomplished without serious adverse effect on the offering
party.
The evidence regarding Appellant's prior abusive behavior was properly
admitted under KRE 404(b) because it was relevant to prove "forcible compulsion," an
element of the crime charged . KRS 510.010(2) defines "forcible compulsion" as
"physical force or threat of physical force, express or implied, which places a person in
fear of immediate death, physical injury to self or another person . . . ." This definition
opens the door to an array of evidence to prove a charge of rape where there is no
direct threat or actual physical force. It recognizes that threat may be implied and that
fear need not arise only from direct threat or physical force.
The conclusion that other crimes can be admitted to show a victim's
fearful state of mind as proof of forcible compulsion is supported by Yarnell v.
Commonwealth .
In Yarnell , this Court allowed testimony of prior abuse by the
defendant against the victims to prove forcible compulsion . The victims were allowed to
testify concerning prior abuse to determine their state of mind and whether they feared
the accused .
In the present case, the victim had witnessed previous abuse by Appellant
against her mother and stepbrother . This evidence was admitted to show her state of
mind, her fear of Appellant, and to prove forcible compulsion . As this crime unfolded, it
3 Ky., 833 S.W .2d 834 (1992) .
would have been implicit to the victim that her failure to submit would probably result in
physical force to accomplish the crime or in punishment for her refusal. S.H . even
testified that she "feared" Appellant . Undoubtedly, the circumstances contained
sufficient implied physical force to create a reasonable fear in the victim's mind. Thus, it
was relevant to the crimes charged that Appellant inflicted physical harm upon the
victim's family members . Exclusion of the evidence would have had a "serious adverse
effect,,4 on the Commonwealth .
The dissent seems to acknowledge the accuracy of the foregoing analysis .
It recognizes that the evidence was relevant but treats it as unnecessary . It is not this
Court's province to determine what evidence is needed by a party to support its claim or
defense . Our responsibility is to determine whether the trial court abused its discretion
in the admission or exclusion of evidence and not to second-guess a party's strategy
with respect to the evidence it presents . Yarnell, supra, clearly stated that "[a]ctual
force is not needed to prove forcible compulsion ."5 While there was some evidence that
Appellant may have behaved in a threatening manner toward the victim, it was not so
overwhelming as to dispense with other evidence that caused the victim to fear him .
For the foregoing reasons, the judgment of the Martin Circuit Court is
affirmed .
Lambert, C.J ., and Johnstone, Keller, and Wintersheimer, JJ., concur.
Graves, J., dissents by separate opinion in which Cooper, J ., and Stumbo, J ., join.
a
5
KRE 404(b)(2) .
833 S.W .2d at 836 .
COUNSEL FOR APPELLANT :
Dennis Stutzman
Euva D. Hess
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler III
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : FEBRUARY 20, 2003
NOT TO BE PUBLISHED
ixpxrutt Qlaurf of ~rufurkg
2001-SC-0672-TG
ROBERT DENZIL NEWSOME
V.
APPELLANT
REVIEW FROM COURT OF APPEALS
1999-CA-001641
MARTIN CIRCUIT COURT NO. 95-CR-00037
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I dissent.
The sole issue presented is whether the trial court erred in admitting the
evidence of Appellant's prior violent acts against persons other than the victim . I
conclude that such was, in fact, error warranting reversal of Appellant's convictions .
Evidence of a defendant's commission of criminal acts, other than that for which
he is being tried, is not admissible in the courts of this Commonwealth unless the other
acts are relevant for some purpose other than to prove the criminal disposition of the
accused . KRE 404(b) ; Drumm v. Commonwealth , Ky ., 783 S.W .2d 380 (1990),
overruled , in part, on other grounds in Garrett v. Commonwealth , Ky ., 48 S .W.3d 6
unds
(2001) ; see also Billings v. Commonwealth , Ky., 843 S .W.2d 890 (1992) . "it is a wellknown fundamental rule that evidence that a defendant on trial had committed other
offenses is never admissible unless it comes within certain exceptions, which are well
defined in the rule itself." Jones v . Commonwealth , 303 Ky. 606, 198 S .W .2d 969, 970
(1947) . "For this reason, trial courts must apply the rule cautiously, with an eye towards
eliminating evidence which is relevant only as proof of an accused's propensity to
commit a certain type of crime ." Bell v . Commonwealth , Ky., 875 S .W .2d 882, 889
(1994) .
This Court has generally ruled that evidence of prior sexual acts of a similar
nature against the same victim is competent . See Keeton v. Commonwealth , Ky., 459
S .W.2d 612 (1970) . And evidence of prior physical and emotional abuse against the
same victims in a rape trial has been held admissible to prove forcible compulsion . See
Yarnell v. Commonwealth , Ky ., 833 S.W .2d 834 (1992) . However, this Court has
generally restricted evidence of prior sexual acts against persons other than the victim
of the charged offense, unless they are similar to the act charged and not too remote in
time . See Anastasi v . Commonwealth , Ky., 754 S .W .2d 860 (1998) ; Pendleton v.
Commonwealth , Ky ., 685 S.W .2d 549 (1985) ; Lantrip v. Commonwealth , Ky ., 713
S.W .2d 816 (1981); Warner v . Commonwealth , Ky., 621 S.W .2d 22 (1981). This case
goes one step farther, in that it concerns the admissibility of evidence of prior physical
abuse against persons other than a victim of sexual abuse or rape .
The burden is on the Commonwealth to establish a "proper basis before
admitting evidence of collateral criminal activity, including a need for such evidence,
and that its probative value outweighs its inflammatory effect." Daniel v.
Commonwealth , Ky., 905 S .W .2d 76 (1995) (quoting Drumm , supra , at 381). Our case
law has established that there are three inquiries which provide a useful framework for
determining the admissibility of other crimes evidence : (1) Is the evidence relevant for
some purpose other than to prove criminal disposition of the accused ; (2) is proof of the
other crime sufficiently probative of its commission to warrant introduction of the
evidence against the accused ; and (3) does the probative value of the evidence
outweigh its potential for prejudice to the accused . Drumm, supra , at 381 ( uotin
Lawson, The Kentucky Evidence Law Handbook , §2 .20 at 42-43 (2d ed . 1984) ; see
also Daniel , supra at 78 . Using these three inquiries, I conclude that the evidence of
Appellant's prior acts of physical abuse against other family members should have
been excluded .
The first inquiry is whether the evidence was relevant for some purpose other
than to prove criminal disposition . The Commonwealth asserts that evidence of
Appellant's physical abuse against other members of the family was relevant to the
issue of forcible compulsion, because it showed how his abuse of others caused S .N . to
fear him and why she apparently did not resist during the rape . In agreeing with the
Comi~nonwealth, the majority relies upon our decision in Yarnell , su ra, in which we
held that evidence concerning the victims' fear of the accused was admissible to
support a finding of forcible compulsion. However, I find such reliance on Yarnell
legally and factually misplaced .
Pursuant to KRS 510 .040(1), "A person is guilty of rape in the first degree when:
(a) He engages in sexual intercourse with another person by forcible compulsion[ .]"
KRS 510 .010(2) defines forcible compulsion as :
[P]hysical force or threat of physical force, express or implied, which
places a person in fear of immediate death, physical injury to self or
another person, fear of the immediate kidnap of self or another person, or
fear of any offense under this chapter . Physical resistance on the part of
the victim shall not be necessary to meet this definition[.]
The definition of forcible compulsion was amended by the legislature in 1996 to
broaden the scope of circumstances under which forcible compulsion can occur and to
clarify that physical resistence by the victim is not required . Cooper, Kentucky
Instructions to Juries , §4.04, p. 194 (Anderson 1999) ; see also Miller v. Commonwealth ,
Ky., 77 S .W.3d 566 (2002) .
Thus, unlike the Yarnell case, S .N .'s testimony that she feared Appellant
because of his prior abuse against others was not required to sustain a finding of
forcible compulsion . Contrary to the trial court's reasoning, there was absolutely no
need to prove why S .N . "did not take any action." As KRS 510.010(2) provides, a
showing of physical resistence on the part of the victim is not necessary to meet the
definition of forcible compulsion . Furthermore, Appellant's act of placing his hands
around S .N .'s neck, as if to choke her, constituted an implied, if not expressed, threat of
physical force. Such is further supported by S.N .'s testimony that "she believed
Appellant was going to kill her." Contrary to the majority's assertion, evidence of
Appellant's prior physical abuse of others was simply not necessary to prove that S .N.
was compelled by force or threat to submit to sexual intercourse with Appellant .
Moreover, the facts of this case are significantly different than those presented in
Yarnell , supra, wherein the evidence indicated that:
the two children were subject to constant emotional, verbal
and physical duress . They lived in continued fear of what
Yarnell might do to them or their mother. They testified that
they went along with deviate sexual behavior only because
of this fear. Under the evidence as a whole, it was not
clearly unreasonable for the jury to find that Yarnell engaged
in sexual intercourse with the children by means of forcible
compulsion .
Yarnell, supra, at 857.
Here, S .N . testified that the prior abuse was perpetrated only against her mother
and step-brother, and that she was never threatened or physically abused by Appellant .
Further, the prior acts in question were not similar in kind to the act of rape, thus
separating this controversy from the line of cases that allow prior sexual acts to be
admitted in a subsequent prosecution for a sexual offense . And importantly,
Appellant's prior uncharged conduct occurred one to two years prior to the rape for
which he was convicted of in this case, making the prior acts too remote in time to be
relevant to this prosecution .
The second inquiry is whether evidence of the uncharged crimes is sufficiently
probative of their commission by Appellant to warrant their introduction . See
Huddleston v . United States , 485 U .S . 681, 108 S.Ct. 1496, 99 L.Ed .2d 771 (1988). I
believe that it is not. The evidence of Appellant's prior physical abuse of his wife and
step-son consisted solely of S .N .'s uncorroborated testimony . The alleged victims of
the abuse were not brought forward to validate the allegations . Nor were S.N .'s other
brothers questioned as to whether they ever witnessed the abuse . The scarcity of
evidence illustrates the inherent difficulty with this inquiry . "What is clear though, is that
the inquiry into probativeness need not be a guessing game . . . . This is an issue to be
determined by a trial court before evidence of uncharged crimes is admitted ." Bell,
supra, at 890. There is nothing in the record to indicate that this inquiry was considered
by the trial court . Thus, S.N .'s testimony, standing alone, was not sufficiently probative
of Appellant's prior acts of physical abuse. Cf Parker v. Commonwealth , Ky., 952
S .W.2d 209 (1997), cert. denied , 522 U .S. 1122 (1998) .
Finally, as for the prejudice inquiry, even the trial court acknowledged that the
evidence in question was extremely prejudicial to Appellant . This type of evidence is
inherently prejudicial in that it is difficult to expect a jury to separate such damaging
information and avoid viewing it as evidence of a defendant's criminal disposition . For
this reason, I cannot agree that the trial court's admonition limiting the jury's use of the
evidence was effective . Since there was no proper purpose this evidence could have
served, the conclusion that its potential for prejudice outweighed its probative value is
inescapable . Walker v . Commonwealth , Ky., 476 S .W .2d 630 (1972).
Cooper, and Stumbo, J .J . join in this dissenting opinion .
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