DANIEL C. CLARK V. COMMONWEALTH OF KENTUCKY
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2005-SC-000177-DG
DANIEL C. CLARK
V
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
INDICTMENT NO. 02-CR-00136
COMMONWEALTH OF KENTUCKY
APPELLEE
OPI NION OF THE COURT BY JUSTICE MINTON
REVERSING AND REMANDING
1. INTRODUCTION.
A jury convicted Daniel Clark of two counts of sexual abuse in the first
degree for which he was sentenced to a total of ten years' imprisonment . A divided
panel of the Court of Appeals affirmed Clark's convictions, and we granted discretionary
review.
Clark contends that the trial court erred (1) by refusing to instruct the jury
on sexual abuse in the second degree, (2) by permitting the Commonwealth to present
testimony to the jury of Clark's prior sexual misconduct involving another victim, and
(3) by refusing to permit him to play for the jury a social worker's videotaped interviews
of the alleged victims . We find merit in Clark's first two arguments, and we reverse on
those issues . Of necessity, we find no error in Clark's third contention because the
videotapes are not in the record for us to review.
II. FACTUAL AND PROCEDURAL HISTORY.
Clark's indictment charged him with committing two counts of first-degree
sexual abuse-one count as to E.H. and one count as to L.H .-of children less than
twelve years of age and two counts of first-degree sodomy-one count as to E.H. and
one count as to L.H.-of children less than twelve years of age between 1998 and May
2002.' The charges proceeded to trial. During jury selection, the trial court granted the
Commonwealth's motion to dismiss the charge of sodomy of L.H . During trial, the trial
court allowed the Commonwealth to amend the indictment to accuse Clark of
committing the offenses between 1999 and May 2002, rather than between 1998 and
2002.
L.H . and E.H. testified that Clark, who was a family friend, repeatedly and
over a course of years reached his hands into their pants and fondled their penises .
Generally, each testified that such contact occurred when he was alone with Clark,
either in the child's home or in Clark's vehicle. L.H . testified that Clark once fondled his
penis while he, Clark, L.H.'s grandmother, and E.H. were watching television together .
And E.H. testified that Clark placed his mouth on his penis on at least one occasion, but
L.H. did not testify to any oral sexual contact with Clark. Both E.H . and L .H. testified
that Clark did not request that either of them touch him in a sexual manner .
The indictment refers to the alleged victims as A.B. and C.D. At trial, the Commonwealth
clarified that A.B. referred to E.H . and C.D. referred to L.H. Clark has not alleged that
referring to the victims in the indictment by those pseudonyms caused him to suffer any
prejudice.
The Commonwealth was also permitted to call M .M . as a witness.2 M.M.,
who was thirty-three years of age at the time of trial, testified that Clark, in his former
role as a Roman Catholic priest, counseled M .M. when he was in the sixth grade .
According to M .M ., during counseling sessions, which usually occurred during and after
school when only Clark and M.M . were present, Clark repeatedly placed his hands
down M.M .'s pants and fondled M.M .'s penis. M.M . testified that Clark repeatedly
placed his mouth on M.M .'s penis. M.M. also testified that Clark never asked M .M . to
touch Clark in a sexual manner. Several years later, Clark pleaded guilty to a criminal
offense based on his sexual misconduct toward M.M .
The jury found Clark guilty of sexual abuse in the first degree against both
L.H . and E.H. but found Clark not guilty of the sodomy charge against E.H . Consistent
with the jury's recommendation, the trial court sentenced Clark to five years'
imprisonment on each sexual abuse charge, to be served consecutively, for a total of
ten years' imprisonment. The trial court denied Clark's motion for a new trial, and his
appeal to the Court of Appeals was unavailing . We then granted discretionary review.
III. ANALYSIS .
A.
Refusal to Instruct on Sexual Abuse in the Second-Degree
Was Improper.
After oral amendment of the indictment during trial, Clark was charged
with committing the first-degree sexual abuse of both L.H. and E.H. between 1999 and
May 2002. Clark argues that based on these charges, he was entitled to an additional
jury instruction on second-degree sexual abuse as to L.H . because L.H . turned twelve in
Due to a problem with the court reporter's recording device at trial, the record does not
contain a verbatim transcript of M .M.'s testimony. The parties have presented M .M.'s
testimony in the form of a narrative statement .
November 2001, approximately seven months before May 2002, when the time period
alleged in the indictment expired . Since the line dividing the offense of first-degree
sexual abuse from second-degree sexual abuse is whether the victim is under twelve
years old,3 we agree with Clark.
A court is required to instruct a jury on all offenses that are supported by
the evidence . L.H. understandably could not pinpoint the date(s) when Clark abused
him .5 So the indictment covered the broad time period from when L.H . moved to Bullitt
County in September 1999 until May 2002, which L.H .'s mother testified was the last
time the family had contact with Clark. The obvious problem with the time frame
included in the indictment is that it includes several months when L .H . was twelve, even
though the charged crime can only be committed against a child who is less than
twelve .
The Commonwealth conceded at oral argument that it erred by not
seeking to amend the indictment to limit the charge to that period of time before L.H .
turned twelve. The Commonwealth's inexplicable failure to do so led to a situation in
which the victim was unable to testify conclusively about when the abuse occurred,
See Kentucky Revised Statutes (KRS) 510.110(1) ; KRS 510.120(1) ; Tungate v.
Commonwealth , 901 S .W.2d 41, 44 (Ky. 1995) ("The lesser offense [i.e., sexual abuse in
the second degree] proscribes sexual contact with a person less than fourteen years old,
while first-degree sexual abuse, a Class D felony, prohibits the same conduct with a person
less than twelve years of age.") The other methods of committing sexual abuse in the first
degree, or second degree, set forth in the statutes are inapplicable to the facts at hand.
Taylor v. Commonwealth , 995 S.W .2d 355, 360 (Ky. 1999) ("In a criminal case, it is the duty
of the trial judge to prepare and give instructions on the whole law of the case, and this rule
requires instructions applicable to every state of the case deducible or supported to any
extent by the testimony.") .
Then-Judge Schroder astutely pointed out in a similar case involving sexual abuse of a
victim less than twelve years of age that "[i]t would be wholly unreasonable to expect a child
of such tender years to remember specific dates, especially given the long time period over
which the abuse occurred ." Farler v. Commonwealth , 880 S .W.2d 882, 886 (Ky.App. 1994).
leaving the jury to speculate as to whether the abuse described by L.H. happened
before L.H. turned twelve, after he turned twelve, or both . This problem is magnified by
the fact that L.H . testified to having been repeatedly abused by Clark, yet the indictment
charged Clark with a single count of abuse of L.H. Thus, if the jury believed beyond a
reasonable doubt that Clark sexually abused L.H., it was forced to speculate both as to
which instance of abuse was covered by the indictment and as to whether that particular
act of abuse occurred before or after L .H .'s twelfth birthday .
A lesser-included offense is an offense that includes the same or fewer
elements than the primary offenses And second-degree sexual abuse is not a classic
lesser-included offense of first-degree sexual abuse because the age of the victim at the
time of the abuse is usually clear . But in those rare instances where the age of the
victim at the time of the abuse is in question, sexual abuse in the second degree can be
deemed a lesser-included offense of sexual abuse in the first-degree . So a trial court
must instruct on both offenses, thereby leaving it to the jury to decide which offense, if
any, better fits the testimony.' This is the precise scenario present in this case because
L .H .'s testimony was so vague that the jury could have believed beyond a reasonable
doubt that Clark sexually abused him before L.H. turned twelve, after he turned twelve,
KRS 505.020(2)(a); Hudson v. Commonwealth , 202 S.W.3d 17,20 (Ky. 2006) .
See 1 COOPER AND CETRULO,
KENTUCKY INSTRUCTIONS TO JURIES, CRIMINAL § 4.48 (stating
in the commentary that "[i]f there is an issue as to the age of the victim, an instruction on
Second-Degree Sexual Abuse and/or Third-Degree Sexual Abuse should be given as a
lesser-included offense [of first-degree sexual abuse]"). Cf. Tunggate, 901 S.W.2d at 44
(rejecting an argument that a trial court erred by not instructing the jury on the lesser
included offense of second-degree sexual abuse only because the evidence was undisputed
that the victims were under twelve years old, without holding that sexual abuse in the
second degree cannot be a lesser-included offense of sexual abuse in the first degree) .
or both. Since there was evidence to support a finding of either first or second-degree
sexual abuse, it was incumbent upon the trial court to instruct the jury on both charges .
Our review of the record also reveals that the trial court's refusal to instruct
the jury on second-degree sexual abuse caused the instruction on first-degree sexual
abuse as to L.H. to be seriously flawed. That instruction stated that the jury could find
Clark guilty of first-degree sexual abuse of L.H . only if it believed beyond a reasonable
doubt:
A.
That in this county, beginning in 1999 and continuing
through and including the month of May[] 2002, and before
the finding of the Indictment herein, he subjected [L.H .] to
sexual contact,
AND
B.
That at the time of such contact, [L.H.] was less than twelve
(12) years of age .
So in order to convict Clark of first-degree sexual abuse, the jury had to find beyond a
reasonable doubt that: (a) Clark subjected L.H . to sexual contact between 1999 "and
including the month of May[] 2002" (emphasis added) and that such sexual contact
occurred (b) while L.H . was less than twelve years old.8 Those two discrete findings are
inherently inconsistent since it is uncontested that L.H. turned twelve several months
before May 2002 . The jury simply could not have found beyond a reasonable doubt that
Clark subjected L. H. to sexual contact "through and including the month of May[] 2002"
while also finding beyond a reasonable doubt that L.H . was less than twelve years of
age when that sexual contact occurred . L.H. was not less than twelve years of age by
May 2002.
The instruction's usage of the phrase "continuing through and including" also appears to
require the jury to find that Clark engaged in a continuous course of conduct toward L.H.
Such a requirement would be improper as Clark was charged with only one count of abuse.
Since a juror could have had a reasonable doubt that Clark sexually
abused L.H . before L.H .'s twelfth birthday, yet have been convinced beyond a
reasonable doubt that Clark sexually abused L.H. after L.H .'s twelfth birthday, the failure
to instruct the jury on second-degree sexual abuse cannot be deemed a mere harmless
error.9
In summary, we acknowledge that in most situations, an instruction on
second-degree sexual abuse is not a lesser-included offense when the primary charge
is first-degree sexual abuse . And the trial court in this case acted properly in refusing to
instruct the jury on second-degree abuse as to Clark's alleged conduct toward E .H .
since E.H . turned twelve in October 2002, several months after the expiration of the
time period set forth in the indictment . But in a situation like the charge involving L .H .,
where the date(s) of the abuse are not described with particularity in either the
indictment or the testimony such that a reasonable juror could have concluded that the
victim was either eleven or twelve when the abuse occurred, a trial court errs by failing
to instruct a jury on both first and second-degree sexual abuse . Thus, Clark's
conviction for sexual abuse in the first degree of L.H . must be reversed .
B . Allowing Evidence of Clark's Prior Sexual Misconduct
to be Introduced During the Guilt Phase Was an
Abuse of Discretion .
In 1988, Clark pleaded guilty to first-degree sexual abuse and seconddegree sodomy . He was sentenced to a total of fifteen years' imprisonment. But the
See, e.g., Webb v. Commonwealth , 904 S.W.2d 226, 229 (Ky. 1995) (holding that a trial
court's "[r]efusal to allow such an instruction [on a lesser-included offense], when supported
by the evidence presented, constitutes reversible error"); 1 COOPER AND CETRULO,
KENTUCKY INSTRUCTIONS TO JURIES, CRIMINAL § 1 .05(B) ("Cases holding that if the
defendant was convicted of the primary offense, a failure to instruct on a lesser included
offense, or giving an erroneous instruction thereon, was harmless error probably have no
present validity .") (internal footnote omitted) .
sentence was probated for five years on condition that Clark serve three months in jail .
Over Clark's objection, the Commonwealth was permitted to offer the testimony of M.M.,
one of the sex abuse victims in Clark's 1988 conviction . Clark now argues that the trial
court's decision to permit M .M.'s testimony was reversible error. We agree.
Since the trial court's unique role as a gatekeeper of evidence requires onthe-spot rulings on the admissibility of evidence, we may reverse a trial court's decision
to admit evidence only if that decision represents an abuse of discretion .'° And for a
trial court's decision to be an abuse of discretion, we must find that the decision "was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.""
In looking at whether the ruling admitting M.M .'s testimony was an abuse
of discretion, we are guided by Kentucky Rules of Evidence (KRE) 404(b), which
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 ." Generally, a
defendant's prior bad acts are inadmissible because "[u]Itimate fairness mandates that
an accused be tried only for the particular crime for which he is charged . An accused is
entitled to be tried for one offense at a time, and evidence must be confined to that
offense . . . . The rule is based on the fundamental demands of justice and fair play. 02
We have construed KRE 404(b) as being exclusionary in nature since "[i]t
is a well-known fundamental rule that evidence that a defendant on trial had committed
other offenses is never admissible unless it comes within certain exceptions, which are
10
See, e.g.,
Brewer v. Commonwealth , 206 S.W.3d 313, 320 (Ky. 2006).
Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999) .
12
O'Brvan v. Commonwealth , 634 S .W.2d 153, 156 (Ky. 1982) (although O'Bryan predates
the adoption of the Kentucky Rules of Evidence, the quoted language is in accordance with
KRE 404(b)).
well-defined in the rule [KRE 404(b)] itself . 13 For that reason, any exceptions to the
general rule that evidence of prior bad acts is inadmissible should be "closely watched
and strictly enforced because of the dangerous quality and prejudicial consequences of
this kind of evidence .
KRE 404(b)(1) provides that evidence of prior crimes or wrongs is
admissible if offered for "proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident[J" In this case, M.M .'s testimony
does not neatly fit into any of the exceptions enumerated in KRE 404(b)(1) . But that list
of exceptions is illustrative, not exhaustive . 15 Among the non-enumerated exceptions
we have recognized to KRE 404(b)'s general prohibition on the introduction of prior bad
acts evidence is the exception advanced here by the Commonwealth, and accepted by
the trial court and Court of Appeals : modus operandi . 16 So, in order to resolve Clark's
case, we must enter yet again the murky waters of determining whether prior sexual
misconduct by a defendant is admissible, a difficult, fact-specific inquiry, as evidenced
by the fact that we once deemed our own opinions on this topic to have been
"somewhat scattered .""
The modus operandi exception requires "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
13
Commonwealth v. Buford , 197 S.W .3d 66, 70 (Ky. 2006) .
14
O'Bryan , 634 S .W.2d at 156 .
15
Tamme v. Commonwealth , 973 S.W.2d 13, 29 (Ky. 1998).
16
See, e.g.,
17
Billings v. Commonwealth , 843 S.W.2d 890, 893 (Ky. 1992).
English, 993 S.W.2d at 945.
(2) the acts were accompanied by the same mens rea. If not, then the evidence of prior
misconduct proves only a criminal disposition and is inadmissible ." i$
In English, we affirmed the trial court's admission of evidence of prior acts
of sexual misconduct toward other victims, recognizing that "the evidence was offered to
show a modus operandi for the purpose of proving motive, intent, knowledge, and the
absence of mistake or accident[ .)" 19 Specifically, the prior bad acts in English
demonstrated that contrary to the defendant's statement to the police that he "might"
have inappropriately touched a victim without realizing it, he actually touched the victim
on purpose (i.e., intent, absence of mistake or accident) ; and he touched the victim for
his own sexual gratification (i.e., motive) . Thus, the prior bad acts demonstrated the
necessary mens rea or mental state.
In the case before us, there is no indication that M .M.'s testimony was
offered to prove Clark's mental state, since there is no indication that Clark might have
unintentionally committed the alleged sexual acts toward L.H . and E.H . Likewise, there
is no indication that another perpetrator abused L .H. and E.H., such that the
perpetrator's identity was at issue .20 Rather, M.M.'s testimony was offered to prove the
other "fundamental" element of the crimes against L.H . and E.H. : "[corpus delicti]-
1s
En lish, 993 S.W.2d at 945.
19
20
Identity would be another proper reason to admit modus operandi evidence . See
UNDERWOOD & WEISSENBERGER, KENTUCKY EVIDENCE 2002 COURTROOM MANUAL at 108
(2001) .
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whether the event occurred at all."21 Nonetheless, the question of corpus delicti is
intertwined with that of identity because striking similarities in factual details between
the prior bad acts and the current charges could demonstrate that "[i]f the act occurred,
then the defendant almost certainly was the perpetrator" such that it is proper "to treat
the evidence as if offered to prove identity by similarity, and to require that the details of
the charged and uncharged acts be sufficiently similar to demonstrate a modus
operandi . °°22
We have attempted to clarify and refine our analysis of the modus
operandi exception in recent reported decisions of this Court. Toward that end, we held
that "it is not the commonality of the crimes but the commonality of the facts constituting
the crimes that demonstrates a modus operandi ."23 So, as a prerequisite to the
admissibility of prior bad acts evidence, we now require the proponent of the evidence
to "demonstrate that there is a factual commonality between the prior bad act and the
charged conduct that is simultaneously similar and so peculiar or distinct that there is a
reasonable probability that the two crimes were committed by the same individual . »24
Thus, "[a]lthough it is not required that the facts be identical in all respects, `evidence of
21
Billings, 843 S.W.2d at 892. See also Dickerson v. Commonwealth , 174 S.W .3d 451, 469
(Ky. 2005) ("in the present case-as in many involving charges of sexual crimesthe
ascendant issue is the [corpus delicti]-whether the event occurred at all.") .
22
Billings , 843 S.W.2d at 893.
23
Dickerson , 174 S.W .3d at 469.
24
Buford , 197 S.W.3d at 71 .
other acts of sexual deviance . . . must be so similar to the crime on trial as to constitute
a so-called signature crime . '»25
With the background of our recent precedent in mind, as the proponent of
the prior bad acts evidence, the Commonwealth bore a heavy burden to meet that
evidentiary standard . In order to determine whether the Commonwealth met that
burden, we must engage in a searching analysis of the similarities and dissimilarities
between Clark's admitted misconduct toward M .M. and his alleged misconduct toward
E .H. and L.H., bearing in mind that "[i]t is inevitable, particularly when the prior act
amounts to an earlier violation of the charged offense, that there will be some basic
similarities between the prior bad act and the new criminal conduct . ,26
As a prefatory matter, we note that the baseline fact that there was sexual
contact between Clark and M.M ., E .H ., and L.H. is, in and of itself, not a distinct pattern
sufficient to satisfy the modus operandi exception . Indeed, such sexual contact is a
necessary prerequisite for the commission of the offense . In other words, the fact that
Clark touched the penis of all three victims is merely an element of the offense of firstdegree sexual abuse. Because a person must satisfy all of the elements of the crime
in order to commit first-degree sexual abuse, the fact alone that Clark touched the penis
of all three victims is a mere element of the crime . Likewise, the fact that all three
victims were apparently less than twelve years of age at the time they were subjected to
25
Dickerson ,
174
(Ky. 1993)) .
S.W .3d at 469 (quoting Rearick v. Commonwealth , 858 S.W.2d 185, 187
26
Buford , 197 S.W.3d at
27
See KRS
71 .
510.110(b)2 (providing that a person commits sexual abuse in the first degree
when he subjects someone less than twelve years of age to "sexual contact .")
KRS 510.010(7) defines "sexual contact" as "any touching of the sexual or other intimate
parts of a person . . . ."
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sexual contact by Clark is also an element of the crime and is not strong evidence of a
distinct pattern of conduct sufficient to meet the modus operandi exception . So, for the
benefit of the bench and bar of this Commonwealth, we stress the fundamental principle
that conduct that serves to satisfy the statutory elements of an offense will not suffice to
meet the modus operandi exception . Instead, the modus operandi exception is met
only if the conduct that meets the statutory elements evidences such a distinctive
pattern as to rise to the level of a signature crime .
The question is, therefore, what other similarities exist between Clark's
abuse of M .M. and his later alleged abuse of E .H. and L.H, such that Clark's abuse of
all three falls into the distinct pattern necessary to qualify for the modus operandi
exception? The Commonwealth relies upon the following alleged similarities : all three
victims were of the same approximate age ; Clark put his hands inside each victim's
pants and fondled the penis; Clark never asked any of the three victims to reciprocate
his sexual contact with them ; and Clark was in a position of trust with each victim.
We agree with the Commonwealth that the age of all three victims was
similar . Although the fact that each victim was under twelve is evidence to satisfy the
statutory element, not evidence sufficient to meet the modus operandi exception, the
fact that the victims were of fairly similar ages-all prepubescent males-is entitled to at
least some weight toward meeting the Commonwealth's burden under the modus
operandi exception .
But we do not agree with the Commonwealth that the fact that Clark
fondled each victim's penis is a significant factor to show the distinctive pattern
necessary to meet the modus operandi exception . Contact between the abuser and the
intimate body parts of the abused appears only to meet the requisite sexual contact
necessary to commit first-degree sexual abuse . This conclusion that Clark's fondling of
all three victims is not sufficiently distinctive to rise to the level necessary to meet the
modus operandi exception is reinforced by the fact that Clark did not only fondle his
victims' penises-he subjected two of the victims to oral-genital contact . The lack of a
consistent allegation that Clark placed his mouth on the penis of all of his victims greatly
undercuts the purported distinct pattern to Clark's abuse. We agree with the
Commonwealth that the fact that Clark never sought reciprocal sexual contact by any of
the three victims weighs in favor of a modus operandi exception in this case .
Finally, though we accept the Commonwealth's premise that Clark was in
a position of trust as to all three victims, we disagree with the Commonwealth's
contention that Clark's position of trust relative to each victim has significant weight in
meeting the modus operandi exception . Clark's role was vastly different with M.M. than
it was with E.H. and L.H. Clark was acting as a counselor or confessor in his role as
M.M .'s priest; but he was a longtime family friend to L.H. and E .H ., which did not involve
his role as a pastor . Thus, it can neither be said that Clark evidenced a distinctive
pattern of abusing children he contacted in his role as a pastor, nor can it be said that
Clark only abused children he came into contact with in his non-professional life. Since
Clark's position and status with M .M . was markedly different than it was with E .H . and
L.H ., we cannot accept the Commonwealth's contention that Clark was in a position of
trust as to all victims in a sufficiently similar manner to meet the modus operandi
exception.
When all the similarities are considered, what we are left with is Clark
reaching his hands down the pants of three victims who were all of the same
approximate age without asking the victim to reciprocate the sexual contact . By
contrast, there are numerous differences in Clark's conduct toward all three victims. As
previously mentioned, not all of the victims accused Clark of orally abusing them . And
though we agree with the trial court that it is not necessary that the abuse always occur
in the same geographical location, the abuse of all three victims occurred in many
different places, such as school, bedrooms, bathrooms, living rooms, and vehicles .
Moreover, Clark sometimes abused the children when he was alone with them and
sometimes abused them when others were around . Finally, Clark's position with regard
to M .M. and E.H. and L .H . is vastly different because he was a counselor and priest to
M.M., while he was a longstanding friend of the family of E .H . and L.H. So, it appears
that, at most, there were as many differences as similarities between Clark's past and
current alleged conduct. This state of relative equipoise is insufficient to meet the
demanding modus operandi exception .
28
See, e.g., Buford , 197 S.W.3d at 71 ('We recount these arguments to demonstrate that
given two factual scenarios, clever attorneys on each side can invariably muster long lists of
facts and inferences supporting both similarities and differences between the prior bad acts
and the present allegations . It is inevitable, particularly when the prior act amounts to an
earlier violation of the charged offense, that there will be some basic similarities between the
prior bad act and the new criminal conduct. . . . Ultimately, the Commonwealth must
demonstrate that there is a factual commonality between the prior bad act and the charged
conduct that is simultaneously similar and so peculiar or distinct that there is a reasonable
probability that the two crimes were committed by the same individual. Notwithstanding the
competing lists of facts and inferences offered by either party, there is nothing in the record
of this case which demonstrates the requisite striking similarity between the incident
involving S.B. and that involving J.R. or H .S.").
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Even Anastasi v. Commonwealth, 29 which we have acknowledged
"pressed the limits of admissibility of other uncharged criminal acts on grounds of
similarity sufficient to indicate a modus operandi[,]" 30 presented a more compelling
pattern of similar conduct than does the case before us . Though it predates our recent
reiteration that the focus on prior bad acts under the modus operandi exception must be
on the common facts, not the commonality of the crimes, Anastasi is entirely
reconcilable with that principle, as well as with our conclusion that there is not enough
distinctive commonality of facts to meet the modus operandi exception in this case .
Anastasi , as in the case before us today, involved charges of first-degree
sexual abuse. At trial, the Commonwealth was permitted to have a witness testify that
the defendant anally raped him eight years before . Despite the fact that rape is
obviously an offense with different elements than the charged crime of first-degree
sexual abuse, we affirmed because the defendant's conduct toward all victims, including
the rape victim, was strikingly similar. We said that "[t]he evidence in this case
disclosed that all victims were young boys with whom Anastasi managed to be alone in
bedrooms . In each instance he was dressed only in his underwear and all victims,
except one, were clothed only in underwear. In each case, prior to the sexual contact,
he tickled and wrestled with the children ." 31 As previously shown, there simply is not
such a distinctive pattern of misconduct by Clark in the case before us.
29
754 S.W.2d 860 (Ky. 1988).
30
Rearick, 858 S .W.2d at 188.
31
Anastasi , 754 S.W .2d at 862.
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Even if we had determined that the Commonwealth had satisfied a
minimal showing of a distinctive pattern of conduct by Clark sufficient to constitute a
signature crime, the probative value of M.M.'s testimony as to that pattern would have
been destroyed by the fact that Clark's abuse of M .M. occurred over twenty years
before the case before us today . Temporal remoteness goes to the weight, not the
admissibility, of the prior bad acts evidence . 33 The temporal remoteness of the prior
bad acts is of less concern when the evidence of the pattern of conduct falls within a
clearly defined, distinctive pattern .34 As previously stated, however, Clark's conduct
toward M.M . does not bear the hallmarks of a signature crime, meaning that the vast
time lapse between Clark's abuse of M .M. and his trial for abusing L.H . and E.H. is a
significant counterweight when balancing the probative value of M.M.'s testimony and
the undue prejudice it caused Clark. This is true especially in light of the fact that the
Commonwealth has cited no authority in which we deemed a twenty-plus year old
sexual bad act to be admissible. In fact, we have condemned the introduction of prior
32
Robey v. Commonwealth , 943 S.W.2d 616, 618 (Ky. 1997) ("This Court has a continuing
problem in deciding when evidence of prior acts become too remote to be admissible, and
we have refused to adopt a bright line ruling concerning the temporal remoteness of other
crimes . KRE 403 requires that the probative value of evidence, even if relevant, must
substantially outweigh the danger of undue prejudice . The requirement that the prior act be
`not too remote' is integral to determining the probative value of the evidence . Thus, an
independent act too remote in time will fail the balancing test required by KRE 403,");
Gray v. Commonwealth , 843 S.W.2d 895, 897 (Ky. 1992) ("As summarized above, the
various allegations here evince no striking similarity indicative of a modus operandi relevant
to the charge . Only the first two incidents related by the third witness exhibit even a general
correspondence to the offense being tried. But any probative worth which that resemblance
might endue is diminished by the significant temporal remoteness of those events . For
these reasons, and on the principles more fully explained in our opinion in Billin s v.
Commonwealth , 843 S.W .2d 890 (Ky. 1992)], rendered today, we hold that the testimony as
to prior sexual acts in this case was more unfairly prejudicial than genuinely probative.") .
33
English, 993 S.W.2d at 945.
Lear v. Commonwealth , 884 S.W.2d 657, 660 (Ky. 1994).
- 1 7-
bad acts that were far less remote than the one in the case at hand .35 Therefore, given
the lack of distinctive similarities between Clark's conduct toward M.M. and his conduct
toward E.H. and L.H ., we find that the probative value of M.M .'s testimony was greatly
diminished by the temporal remoteness of Clark's abuse of M .M.
In short, we find that the Commonwealth has not met its heavy burden to
show that Clark's conduct toward M.M ., E.H ., and L.H . is so similar and distinctive as to
be admissible under the modus operandi exception to KRE 404(b) . That conclusion is
reinforced by the twenty-year time gap with Clark's prior sexual bad acts toward M.M .
Therefore, under the set of facts of this case, we find that "ultimate fairness" and the
"fundamental demands of justice and fair play" required Clark to be tried for only the
crimes for which he was charged; and the trial court abused its discretion by permitting
M .M . to testify about the offense committed by Clark.
C.
We Cannot Determine the Admissibility of the Videotaped
Interviews of E.H . and L.H. Because Those Videotapes
Are Not in the Record .
Clark contends that the trial court erred by refusing to permit him to play
videotapes to the jury that allegedly show a social worker "coaching" E .H. and L.H .
Clark contends that the tapes are self-authenticating and admissible because they were
provided to him by the Commonwealth in discovery . The Commonwealth contends that
Clark failed to lay a proper foundation for the introduction of these tapes because he did
35
See, e.g., Gray, 843 S.W.2d at 897; Robey, 943 S.W .2d at 618 (holding that in a
prosecution for rape, evidence of an earlier rape should not have been admissible because
"[t]he evidence of a single sixteen-year-old conviction, although the crimes had similar
aspects, was simply too remote.").
36
O'Bryan , 634 S.W.2d at 156.
- 1 8-
not ask L .H. about the tapes and only asked one compound question of E.H. about the
tapes .3'
Although this issue presents a potentially important question as to the
foundational requirements needed to introduce a videotape purporting to show that a
witness had been coached, we are precluded from addressing that issue on its merits
because the tapes are not in the record . Surprisingly, the tapes' absence from the
record was not mentioned in the Court of Appeals' opinion, nor was it mentioned in the
parties' briefs or during the extensive oral argument we heard on this issue .
At a bench conference conducted by the trial court after the
Commonwealth had rested and Clark's motion for a directed verdict had been denied,
the Commonwealth stated its objection to Clark's counsel's intention to play the
videotaped interviews of E.H . and L.H . After discussion, the trial court stated that it
believed the tapes were not admissible but further indicated that it would give counsel
time during the lunch recess to research the issue. Before that lunch break, Clark's
counsel had the following discussion with the trial court:
MR. LAMBERTUS: All right .
Judge, if the Court does not re-visit this
and allow these tapes, then I would submit for the record
s'
During cross-examination, the following colloquy occurred between E.H. and Clark's
counsel :
Q.
Do you remember when you first started talking about that you went to see a social
worker and as to your statements they had a video tape of it. Do you remember that?
A.
No.
Q.
You do remember talking to a social worker about this?
A.
Yes.
_1g-
that I would like these to be part of the appellate record for
review.
THE COURT: Well, (1) I will re-visit the issue . I have
already indicated to Counsel I will do that. (2) 1 am not going
to indicate in advance how I am going to rule without looking
at the authority.
MR. LAMBERTUS : Thank you, Judge .
After that exchange, Clark testified in his own behalf. The lunch recess
followed . Then the parties again took up with the trial court the discussion of the
admissibility of the tapes . At the conclusion of the discussion, the trial court ruled that
the tapes were inadmissible . Clark's counsel did not renew his request to make the
tapes a part of the record for appellate purposes at that time . Instead, it was after the
jury had found Clark guilty that the following exchange occurred :
MR. LAMBERTUS : Judge, I mentioned yesterday, or
whenever, that I wanted the video tapes that the Court
excluded as part of the appellate record . If I could at some
point mark those Defendant's Exhibit whatever for the record
and give those to the court reporter.
THE COMMONWEALTH : Are you doing that by avowal?
MR . LAMBERTUS : I mentioned the other day. I notice they
are still sitting on my desk and I haven't marked them.
THE COURT: All right. The two video tapes may be marked
by Defense Counsel as Defense Exhibits Proposed but
rejected by the Court for the reason stated by the Court from
the bench .[]
(DEFENDANT PROPOSED EXHIBIT NO. 1 MARKED FOR
IDENTIFICATION)
The record does not reflect whether Clark's counsel gave the videotapes to either the
judge or the court reporter . We have tried diligently to find the tapes so that we could
view them but have been unable to do so.
- 2 0-
Although each case is factually distinguishable from the one before us, we
have consistently and repeatedly held that it is an appellant's responsibility to ensure
that the record contains all of the materials necessary for an appellate court to rule upon
all the issues raised . And we are required to assume that any portion of the record not
supplied to us supports the decision of the trial court.39
Although the record contains a parenthetical notation by the court reporter
that the tapes were marked as a defense exhibit, there is no indication that the tapes
themselves were ever delivered to either the court reporter or to the trial court.
Although written in a different context, we have recently noted that we can rule solely
upon the record presented to us . 40 Since we "simply cannot address admissibility and
prejudice issues in a vacuum,"41 we cannot determine whether the trial court erred by
refusing to admit into evidence videotapes that we cannot view. Thus, we must affirm
the trial court's decision to refuse to admit the videotapes .42
38
See, e .g., Commonwealth v. Thompson , 697 S.W.2d 143 (Ky. 1985); Fanelli v.
Commonwealth , 423 S .W.2d 255 (Ky. 1968) .
39
Thompson , 697 S.W.2d at 145. It must be noted, however, that it does not appear as if the
trial court ever viewed the tapes in question ; nor, we must presume from the fact that it is not
contained in the record presented to us, did the Court of Appeals .
40
See Commonwealth v. Ferrell, 17 S.W.3d 520,525 n .10 (Ky. 2000) ("Appellate courts
review records ; they do not have crystal balls .").
41
Id. at 525.
42
Because they are not in the record before us, we express no opinion as to whether the
videotapes are admissible upon retrial, presuming that they are found.
- 21-
111. CONCLUSION.
For the reasons stated, Daniel Clark's convictions for sexual abuse in the
first degree are reversed ; and this case is remanded to the circuit court for proceedings
consistent with this opinion.
Lambert, CJ, and McAnulty, Minton, Noble, and Schroder, JJ ., concur .
Scott, J., dissents by separate opinion in which Cunningham, J., joins.
COUNSEL FOR: APPELLANT :
David A. Lambertus
600 West Main Street, Suite 300
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Office of the Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : MAY 24, 2007
TO BE PUBLISHED
,;vuVrrme Caurf of ~6ufurhV
2005-SC-000177-DG
DANIEL C . CLARK
V.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
NO . 02-CR-00136
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE SCOTT
I concur with the majority's determination that the trial court must be
affirmed regarding its decision to deny admittance of the video tapes into
evidence . However, I must respectfully dissent because I do not believe the trial
court erred when it overruled Appellant's motion to instruct on an unindicted
crime . I also dissent because I do not believe the trial court abused its discretion
when .it permitted testimony from one of Appellant's prior victims .
I . Refusal to instruct on unindicted crime was not error.
The testimony in this case was undisputed . L.H .'s testimony indicated that
Appellant molested him on a continual basis for almost three (3) years - between
1999 and May 2002. L.H. turned twelve (12) in November 2001 . Since some of
the sexual abuse may have occurred after L.H.'s twelfth birthday, Appellant could .
have been charged with and found guilty of: (1) sexual abuse in the first degree;
(2) sexual abuse in the second degree ; or (3) both crimes.
The majority makes much of the fact that although the evidence was
sufficient to support charging Appellant with several crimes, Appellant was
charged with only one crime . While this may be a legitimate criticism, it is not for
this Court to dictate the crimes with which a defendant should be indicted. Right
or wrong, the grand jury utilized its discretion to indict Appellant only on sexual
abuse in the first degree, even though it could also have indicted Appellant for
sexual abuse in the second degree . Since these crimes are not mutually
exclusive, i.e. conviction of one crime does not preclude conviction of the other,
the trial court was not mandated to submit an instruction for the separate,
uncharged, but `lesser' crime of sexual abuse in the second degree . See
Hudson v. Commonwealth , 202 S.W.3d 17, 22 (Ky. 2006) ("An instruction on a
separate, uncharged, but "lesser" crime-in other words, an alternative theory of
the crime-is required only when a guilty verdict as to the alternative crime would
amount to a defense to the charged crime, i.e ., when being guilty of both crimes
is mutually exclusive .") . To hold as the majority does today "would allow a
criminal appellant to seek reversal of his conviction simply because the trial court
failed to instruct as to all the criminal acts he may have committed, regardless of
whether the other uncharged crimes have any bearing on guilt as to the charged
crimes." Id .
I further disagree with the majority's holding that Appellant was entitled to
an instruction on sexual abuse in the second degree as a "lesser-included
offense ." See Thomas v. Commonwealth , 170 S .W.3d 343, 349 (Ky. 2005) ("An
instruction on a lesser-included offense is required if the evidence would permit
the jury to rationally find the defendant not guilty of the primary offense, but guilty
of the lesser offense .") . The majority's argument would have merit if this truly
was one of those "rare instances where the age of the victim at the time of the
abuse is in question ." Slip op. a t 5. But that is simply not the case.
There can be no question as to L.H .'s age at the time of the abuse
because the evidence was undisputed ; it indicated that L.H . was molested
repeatedly between his ninth and twelfth birthdays . Since Appellant was not
charged with any crimes that occurred after L.H.'s twelfth birthday, it would not
have been rational for the jury to find Appellant guilty of sexual abuse in the
second degree .' Accordingly, I believe an instruction on sexual abuse in the
second degree as a "lesser-included offense" was clearly improper in this case.
Finally, 1 see no "serious[] flaw" in the jury instruction regarding sexual
abuse in the first degree of L.H. Slip op. at 6. The instruction required the jury to
make two findings :
A . That in this county, beginning in 1999 and continuing through
and including the month of May[] 2002, and before the finding of the
Indictment here, he subjected [L .H.] to sexual contact;
AND
' If the jury somehow believed that abuse occurred after L.H.'s twelfth birthday,
but not prior, the proper verdict in this case would have been not guilty. Of
course, this scenario is implausible since L.H . was unable to specify the time
when each act of abuse occurred (other than to say that sexual abuse occurred
repeatedly during the three year span referenced above) . Thus, L.H.'s credibility
was an all or nothing proposition ; the jury had no choice but to believe or
discount the testimony in its entirety.
B . That at the time of such contact, [L.H.] was less than twelve (12)
years of age.
Contrary to the majority's assertions, there is nothing "inherently
inconsistent" about these findings. Slip op. at 6. The first finding sets forth the
broad period of time during which L.H . testified he was exposed to abuse; and
the second finding sets forth that L . H . was less than twelve years of age at some
point during this period. The jury's narrowed focus was required, of course,
because although crimes may have occurred after L.H .'s twelfth birthday,
Appellant was not indicted or charged with any of those crimes.
Indeed, these instructions were not plucked from thin air, but rather they
were crafted to conform with the evidence as it was presented at trial - that
Appellant molested L.H . repeatedly between his ninth and thirteenth birthdays,
but that Appellant was only being prosecuted for crimes which occurred prior to
L.H .'s twelfth birthday . When the plain meaning of these instructions are properly
considered in light of the evidence presented at trial, there is simply nothing
about the instructions that could fairly be classified as misleading, inaccurate, or
inconsistent . Accordingly, I respectfully dissent because I do not believe there
was error regarding the instructions submitted to the jury in this case.
11. Permitting testimony of prior victim was not abuse of discretion .
The majority also faults the trial court for making a very close call on
whether the crimes committed against M.M . were "so strikingly similar to the
charged offense as to create" a modus operandi . Commonwealth v. English , 993
2 Thus, the second finding was simply a subset of the first finding.
S .W .2d 941, 945 (Ky. 1999) . Although the majority disagrees with the trial court's
ultimate determination, it is not proper for this Court to set the trial court's
determination aside unless the decision is clearly "arbitrary, unreasonable, unfair,
or unsupported by sound legal principles." Id.
Because I believe the trial
court's decision is nowhere close to arbitrary or unfair, I dissent from the
majority's holding that the trial court's discretion must be overruled .
Although paying lip service to the concept, the majority fails to respect the
"difficult, fact-specific inquiry" conducted by the trial court. Slip. op. a t 9. In this
case, Appellant was in a position of trust with all three boys, all the boys were
about the same age, and most strikingly, Appellant molested all the boys in the
same manner. The molestation is particularly unique because the testimony
established that Appellant fondled each boy's genitalia and sometimes performed
oral sex on the boys, but never asked the boys to reciprocate or touch Appellant
in anyway .
The pertinent analysis in this case is "whether there exist common facts
between the acts . . . not whether there was common criminality ." Martin v.
Commonwealth , 170 S.W.3d 374, 380 (Ky. 2005) . In an attempt to apply the
above principle, the majority completely discounts striking similarities in
Appellant's conduct towards each boy because "sexual contact" and "age" are
"mere element[s] of the crime ." Slip op. at 12. Yet, this is clearly a
misapplication of the above principle since it is the factual details of each element
of a crime which establish the common facts in any particular analysis .
Indeed, this Court has on several occasions considered the factual details
of sexual contact when determining whether evidence of a past crime is
admissible . See , e,_q_., Funk v. Commonwealth , 842 S.W .2d 476, 480-81 (Ky.
1992) (past crime was similar enough to be admissible in large part because
defendant was alleged to have digitally penetrated both child victims),
Commonwealth v. English, 993 S .W.2d 941, 945 (Ky. 1999) (fact that defendant
touched vaginal area of each victim was relevant in determining whether past
crimes were "strikingly similar" enough to be admissible) ; Martin , 170 S .W.3d at
380 (striking similarity in crimes included fact that victims were "abused by similar
touching of the vaginal area, always without penetration") . Cf. Dickerson v.
Commonwealth , 174 S.W.3d 451, 469 (Ky. 2005) (modus operandi was not
established in large part because "no facts were introduced to describe the
nature of the acts of sodomy" which were perpetrated against each victim) . The
same is true with age. See , e.g.., Anastasi v . Commonwealth , 754 S .W .2d 860,
862 (Ky. 1988) (fact that all victims were "young boys" was relevant in
establishing "pattern of conduct") ; English, 993 S .W.2d at 945 (fact that each
victim was a "prepubescent female" was relevant in determining similarity of past
crimes) ; Martin , 170 S.W.3d at 380 (striking similarity in crimes included fact that
victims were "between the ages of five to eleven years old at the time of the
abuse") . Thus, I believe it was proper for the trial court to consider the strikingly
similar ages of each victim at the time of their molestation, as well as the
strikingly similar nature of the sexual contact perpetrated by Appellant against
each victim, as significant factors in establishing a distinct pattern of conduct by
Appellant .
The majority further fails to give proper weight to the fact that Appellant
placed himself in a position of trust with each one of these boys. The majority
emphasizes a superficial difference between Appellant's roles as it related to
each of the victims - Appellant served in the role of priest with M.M . and then in
the role of longtime family friend with E.H. and L.H . While this difference is
relevant and should be considered, the majority overemphasizes the significance
of this superficial title change.
It is relevant to consider that Appellant could no longer utilize the priest
role as a means to victimize children since he was removed from that position
due to his misconduct against M .M. Second and most pertinent, of course, is
that although his title may have been different, his position of power and
influence in relation to each victim remained the same . As both a priest and a
family friend, Appellant placed himself in a position where young boys looked up
to him, trusted him, and sought his counsel and advice . This is a unique and
peculiar characteristic that is pertinent to establishing a pattern of conduct and
should not be discounted simply because the wolf changed its clothing .
In regard to the differences between the victims, the majority's points are
weak . First, while all three victims accused Appellant of fondling their genitals,
E .H . and M .M. alleged that Appellant performed oral sex as well . Second, the
abuse occurred in different locations. Finally, Appellant was a priest when he
abused M .M., but only a family friend when he abused E .H . and L.H .
In assessing whether evidence is sufficient to constitute a modus
operandi, "it is not required that the facts be identical in all respects ." Dickerson
v. Commonwealth , 174 S .W.3d 451, 469 (Ky. 2005). In this case, the differences
are primarily ones of circumstance. When the differences and similarities are
balanced in light of the totality of the evidence, the differences are simply not
substantial enough to outweigh or dilute the strikingly similar pattern of conduct
perpetrated against M.M ., E.H ., and L.H . See Anastasi , 754 S.W.2d at 861
(strikingly similar conduct found even though sex acts were different and the age
of the victims were different); Martin , 170 S .W.3d at 380 (strikingly similar
conduct found even though defendant was accused of committing sodomy with
only one of three victims, defendant bribed the children with different things, and
defendant variously committed acts with one and two children at a time) .
Finally, the majority misstated current law when it declared that "the
probative value of M.M .'s testimony as to [Appellant's] pattern [of conduct] would
have been destroyed by the fact that [Appellant's] abuse of M .M. occurred over
twenty years before the case before us today." Slip op. at 17 . In Commonwealth
v. English , this Court established that "temporal proximity . . . is less significant
when the issue is modus operandi . . . ." 993 S .W .2d at 944 (citing with approval
a North Carolina case which upheld "admission of evidence of a prior wrongful
act which occurred seventeen years before the charged offense"). "Thus, if the
prior wrongful act, or a particular aspect thereof, is so similar to the charged
offense as to show a modus operandi which tends to prove an element of the
charged offense, remoteness alone does not require suppression of the evidence
of the prior misconduct." Id. (Emphasis added) . Moreover, contrary to the
majority's assertion, the Commonwealth did cite authority by this Court which
approved temporally remote evidence of sexual bad acts.3 See Lear v .
Commonwealth, 884 S .W .2d 657, 659-660 (Ky. 1994) (although prior bad act
was temporally remote, victim's mother, who herself had been raped by same
defendant as a child, was permitted to testify regarding her abuse).
When the evidence is viewed in a fair and balanced light, it was not
unreasonable or arbitrary for the trial court to determine that the crimes
committed against M .M. were "so strikingly similar to the charged offense as to
create" a modus operandi . Id. at 945. Therefore, I must respectfully dissent
because it is improper for this Court to overrule the trial court's discretionary
determination merely because it would have ruled differently .
Cunningham, J., joins this dissent.
3 While the opinion does not reference the actual difference in time between the
rape of the mother and the rape of her own daughter, one could make an
educated guess that the prior bad act occurred no less than fifteen (15) years,
and more than likely closer to twenty (20) years, before the charged offense.
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