GREGORY WOODLEE V. COMMONWEALTH OF KENTUCKY
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MODIFIED : APRIL 22, 2010
RENDERED : JANUARY 21, 2010
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2008-SC-000351-MR
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GREGORY WOODLEE
V.
APPELLANT~-
ON APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
NO . 07-CR-00140
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
A Laurel Circuit Court jury convicted Appellant, Gregory Woodlee, of two
counts of first-degree sexual abuse and of being a second-degree persistent
felony offender . On appeal, he argues that the trial court erroneously admitted
evidence of his prior conviction of sexual abuse, in violation of KRE 404(b) . For
the reasons set forth below, this Court agrees and his convictions are reversed .
I . BACKGROUND .
Appellant met Alice Ferguson in September 2005 . They began dating on
and off until Alice found out that she was pregnant. She "didn't want to be tied
down with anyone" ; but Appellant wanted to be a father, so she gave him the
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opportunity. They moved in together shortly before their baby, a girl named
A.L., was born in August 2006 .
Alice worked as a cook at The Depot in London, Kentucky . A.L. was born
prematurely and needed extra attention for the first few months of her life so
Alice stayed home with her. Three months after A.L. was born, in November
2006, Alice went back to work at The Depot.
While Alice was at work, Appellant stayed home and cared for A.L.
During this time, no one else lived with them; and A .L. had no babysitters
other than Appellant. They lived together until Appellant was arrested on
charges unrelated to this case in March 2007 .
Following Appellant's arrest, a neighbor searched on the Internet and
discovered that Appellant was a registered sex offender. The neighbor printed
out a flyer concerning this and gave a copy to Alice's sister, who lived nearby.
Alice eventually received the flyer, which revealed that Appellant had been
convicted of sexually abusing another daughter of his, B.W ., when she was four
or five years old . Alice was not previously aware of Appellant's prior conviction .
Alice became fearful that Appellant may have abused A. L. so she took her
to the Child Advocacy Center's TLC House for an examination. The
examination revealed several healed and healing tears in A .L.'s vagina.
TLC House staff then contacted police, and Appellant was subsequently
arrested and charged with two counts of first-degree sexual abuse .
Prior to trial, the Commonwealth filed a notice of its intent to introduce
evidence of Appellant's prior sexual abuse of B.W . Appellant objected and filed
a motion in limine to exclude this evidence. Ultimately, the trial court
overruled Appellant's motion.
Subsequently, B.W. testified at trial that Appellant began sexually
abusing her when she was four or five years old. In particular, she testified
that Appellant had placed his tongue, fingers, and penis in her vagina. In her
reports at the time, B.W. also stated that Appellant placed toothpaste on his
penis and had her perform oral sex on him. She eventually told her
grandmother, and Appellant was convicted in 2001 of first-degree sexual
abuse. The Commonwealth referred to this conviction in its opening statement
and closing argument, as did Alice and the neighbor who discovered the
conviction during their testimony.
Dr. Crawford, of the Child Advocacy Center's TLC House, also testified .
He performed an examination on A.L. in March 2007 . He testified that A.L.
had scars and a partially healed tear on the vestibule of her vagina, as well as
multiple tears on her hymen. He testified that, in his opinion, these injuries
must have been caused by something penetrating A.L.'s vagina.
Appellant presented no evidence in his defense. The jury convicted him
of two counts of first-degree sexual abuse, for which he was sentenced to a
total of twenty years in prison . He appeals to this Court as a matter of right,
Ky. Const. ยง 110(2) (b), arguing that the trial court abused its discretion when it
allowed evidence of his prior sexual abuse of B .W.
II . ANALYSIS.
The only issue on appeal is whether the evidence of Appellant's prior
sexual abuse of B.W. was admissible to establish his identity as the person
who abused A.L., by virtue of the similarity of the acts . The trial court's
decision to admit this evidence is reviewed for an abuse of discretion . E.g.,
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) . A trial court
abuses its discretion if its decision was "arbitrary, unreasonable, unfair, or
unsupported by sound legal principles ." Id.
Evidence of prior crimes, wrongs, or acts is inadmissible to prove the
propensity of an accused; however, such evidence may be admissible to prove
something else, KRE 404(b) (1), including proving identity by the similarity of
the acts, see English, 993 S.W.2d at 945 . Such evidence is admissible for this
purpose if "it should indicate a modus operandi." Billings v. Commonwealth,
843 S .W.2d 890, 893 (Ky. 1992) .
"[W]hether prior sexual misconduct by a defendant is admissible[ is] a
difficult, fact-specific inquiry." Clark v. Commonwealth, 223 S .W.3d 90, 96 (Ky.
2007) . To indicate modus operandi, the two acts must show "striking
similarity" in factual details, id. passim, such that "if the act occurred, then the
defendant almost certainly was the perpetrator," id. at 97 (quoting Billings,
843 S.W .2d at 893) . That is, the facts underlying the prior bad act and the
current offense must be "simultaneously similar and so peculiar or distinct," id.
(quoting Commonwealth v. Buford, 197 S.W.3d 66, 71 (Ky. 2006)) (emphasis
added), that they almost assuredly were committed by the same person .
As the proponent of the prior bad act evidence, the Commonwealth "bore
a heavy burden" to show the striking similarity of the acts . Id. at 97 . The
similarities offered here are that both acts included touching or penetration of
the vagina, both girls were very young, Appellant was sometimes alone with
them, he was the father of both, and the acts were close in time. These
common facts are not so peculiar or distinct to show modus operandi.
First, sexual contact is, by itself, not distinctive for sexual abuse . In fact,
sexual contact is an element of the crime, KRS 510.110(1)(b), and, thus, would
be present in any such charge. Appellant's present charge and his prior bad
act necessarily have "some basic similarities" because they are for the same
crime and, thus, share statutory elements. Clark, 223 S.W .3d at 97 (quoting
Buford, 197 S .W. 3d at 71) . For that reason, "conduct that serves to satisfy the
statutory elements of an offense will not suffice to meet the modus operandi
exception." Id. at 98 .
Moreover, the particular manner of sexual contact here is not so peculiar
or distinct as to show modus operandi. The bad act evidence showed that
Appellant placed his tongue, fingers, and penis in B .W.'s vagina. The evidence
in this case, from Dr. Crawford's testimony, shows only that something
penetrated A. L.'s vagina. There is no evidence as to what was used, or how it
was used. Facts cannot be presumed in the absence of evidence, and the only
commonality shown here is that something penetrated both victims' vaginas .
This cannot be said to be peculiar or distinct for this sort of crime. Penetration
is present in all rape charges, as is sexually touching in all sexual abuse
charges. And "it is not the commonality of the crimes but the commonality of
the facts constituting the crimes that demonstrates modus operandi." Id. at 97
(quoting Dickerson, 174 S .W .3d at 469) .
Second, although it is true that both victims were very young, the
difference in their age actually cuts against establishing modus operandi.
Appellant's prior bad act involved a victim who was four or five years old at the
time of the sexual abuse . Here, the victim was no more than six months old.
The four- or five-year-old child could and did engage in participatory sexual
behavior with Appellant, whereas the infant could not and did not.
The prior bad act evidence showed that, among other things, Appellant
placed toothpaste on his penis and had the victim perform oral sex on him.
Clearly, an infant could not perform oral sex, or otherwise participate in the
sexual activity . This lack of participatory or reciprocal ability of the infant is a
strong point of dissimilarity, as the basic nature of the abuse is so different participatory versus passive. The prior conviction suggests that Appellant's
modus operandi, if he had one, was to demand participatory behavior from his
victims in a like manner, something that he plainly could not do here .
Third, 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. Cf. id. at 92, 99. Virtually all sexual offenses occur when the
perpetrator and victim are alone.
Fourth, the strongest factor supporting modus operandi is that Appellant
is the father of both victims; but this is insufficient without more . This is the
only common fact that is arguably so peculiar or distinct that it identifies
Appellant as the perpetrator. However, merely being the victims' father does
not so identify him. And in light of the key difference in the basic nature of the
abuse - participatory versus passive - this commonality cannot be said to
carry the Commonwealth's "heavy burden" to meet the modus operandi
exception .
Last, the closeness in time between the two crimes is not relevant in this
analysis. As this Court has previously stated, "[t]emporal remoteness goes to
the ,weight, not the admissibility, of the prior bad acts evidence ." Id. at 100
(emphasis added, citing English, 993 S .W.2d at 945) . In other words, this is a
factor to be considered "when balancing the probative value of [the bad act
evidence] and the undue prejudice it caused" under KRE 403 but not when
determining the threshold modus operandi question under KRE 404(b) . Id.
The only way to identify the Appellant as the perpetrator in this case is to
conclude that because he did it before, he must have done it this time. This is
the very type of propensity presumption that is forbidden by our rules of
evidence because it is obviously prejudicial without being truly probative.
Perhaps the use of toothpaste before oral sex, as Appellant had done in his
prior conviction, could establish modus operandi if there were evidence that it
had occurred here too. Commonality of that sort is lacking here .
The modus operandi exception requires acts that mark the crime as that
of a specific person who may be unknown until caught, but who is identified by
the distinctive nature of his or her acts . Examples include well-known
criminals, such as Jack the Ripper; the BTK (bind, torture, kill) strangler; and
the Unabomber. By their distinct criminal methods, each of them signed off on
their crimes. While modus operandi may not require commonalities as blatant
as those listed above, there must be some peculiar or distinct commonalities
that show that the crimes were committed by the same person . Id. While
Appellant had the opportunity to commit the crime here, there is no peculiar or
distinct set of facts showing that it must have been him. All we garner from
the prior conviction is that he has the propensity to commit this type of crime,
and so he must be guilty of committing it again.
Unlike our rules, the Federal Rules of Evidence (FRE) specifically make
evidence of prior acts of child molestation admissible in subsequent child
molestation cases. FRE 414(a) . This rule expressly allows propensity evidence
in these cases, making an exception to FRE 404(b) . Kentucky has no similar
rule; and KRE 404(b), as currently written, excludes bad acts evidence absent
an exception such as modus operandi . The Kentucky Rules of Evidence were
most recently amended in 2007, and the rules committee did not recommend,
nor did this Court adopt, the exception to propensity evidence set forth in
FRE 414(a), which has been effective in federal courts since 1995.
Under current Kentucky law, propensity evidence remains inadmissible
even in child sex abuse cases . Our law on this point is well established, and
the trial court's reading of the modus operandi exception is so broad that it
swallows the rule . As this Court has previously stressed, KRE 404(b) is
"exclusionary in nature"; and, as such, "any exceptions to the general rule that
evidence of prior bad acts is inadmissible should be `closely watched and
strictly enforced because of [its] dangerous quality and prejudicial
consequences .' Clark, 223 S.W.3d at 96 (quoting O'Bryan v. Commonwealth,
634 S.W.2d 153, 156 (Ky. 1982)) .
In short, the prior bad act and the current charge are not simultaneously
similar and so peculiar or distinct as to be admissible under the modus
operandi exception to KRE 404(b). The "fundamental demands of justice and
fair play" require that Appellant "be tried for only the crimes for which he was
charged ." Id. at 101 . For that reason, the trial court abused its discretion by
allowing evidence of Appellant's prior offense . Given the "universal agreement
that evidence of this sort is inherently and highly prejudicial," Bell v.
Commonwealth, 875 S.W .2d 882, 890 (Ky. 1994), this error was not harmless .
Appellant's convictions, therefore, are reversed .
III . CONCLUSION.
For the foregoing reasons, the judgment of the Laurel Circuit Court is
reversed; and the case is remanded to the Laurel Circuit Court for further
proceedings consistent with this opinion .
All sitting. Minton, C .J . ; Schroder and Venters, JJ ., concur.
Abramson, J., concurs in result only. Cunningham, J ., dissents by separate
opinion in which Scott, J ., joins.
CUNNINGHAM, J., DISSENTING : I respectfully dissent.
The sexual molestation of small children, especially one's own, is such an
aberration of human nature that, in my opinion, it constitutes a signature
crime. Appellant was previously convicted of sexually abusing his four-year-old
daughter. He stood trial in this case for two counts of sexually abusing his
infant daughter . These crimes show striking - even shocking - similarity and
are "peculiar or distinct ." The sexual attacks upon his four-year-old and upon
his infant daughter were relatively close in time . The infant victim of this crime
has neither the ability nor the means to communicate the appalling acts
perpetrated upon her. Therefore, the utilization of Appellant's past sexual
wrongdoing upon his daughter provides critical and damning evidence on
behalf of the hapless baby. I would affirm the conviction .
Scott, J ., joins this dissent.
COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Department of Public Advocacy
,100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, Kentucky 40601-8204
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2008-SC-000351-MR
GREGORY WOODLEE
APPELLANT
ON APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
NO. 07-CR-00140
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND, MODIFYING OPINION
The Appellee having filed a Petition for Rehearing of the Opinion of
the Court by Justice Noble, rendered January 21, 2010; and having
reviewed the record and being otherwise fully and sufficiently advised,
the Court ORDERS:
1)
The Appellee's Petition for Rehearing is DENIED ; and
2)
On the Court's own motion, the Opinion of the Court by
Justice Noble, rendered January 21, 2010, is MODIFIED; and the
attached opinion is SUBSTITUTED in lieu of the original . The
modification does not affect the holding.
All sitting . All concur.
ENTERED : April 22, 2010
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