Stephon Slone v. Commonwealth of Kentucky ( 2014 )

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RENDERED: OCTOBER 23, 2014
T TO BE PUBLISHED
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2013-SC-000446-MR 11'1_
STEPH6N SLONE
DAT \"'‘:\tk
APPELLANT
ON APPEAL FROM PERRY CIRCUIT COURT
V. HONORABLE WILLIAM ENGLE III, JUDGE
NO. 12-CR-00220
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Stephon Slone, appeals from a judgment of the Perry Circuit
Court convicting him of fifst-degree rape and of being a second-degree
persistent felony offender. As a result of these convictions Appellant was
sentenced to twenty years' imprisonment.
As grounds for relief Appellant contends that (1) he was entitled to a
directed verdict of acquittal on the rape charge; (2) he did not receive a fair trial
because of prosecutorial misconduct; (3) the trial court's failure to declare a
mistrial in response to the Commonwealth's discovery violations produced a
manifest injustice; (4) he was denied the right to present his defense when the
trial court refused to permit him to introduce into evidence a juvenile court
petition filed against the victim; and (5) the trial court erroneously permitted
the Commonwealth to introduce evidence concerning his prior drug use.
For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and his girlfriend, Teresa, had lived together with her son and
her daughter, "Helen," as a family household for over a decade when for a few
months in 2011, Teresa was incarcerated. Helen was fourteen years old.
Appellant was thirty.
Several weeks after her mother's release, Helen made a 911-call to report
that Appellant had raped her three times. When interviewed later that day,
Helen told Kentucky State Police detective Chris Collins that she had been
raped only once. She also told a child welfare worker that she had been raped
only once, and she made the same allegation when she testified before the
grand jury.
As a result of Helen's allegation, Appellant was indicted on one count of
first-degree rape by forcible compulsion, KRS 510.040(1)(a), and second-degree
persistent felony offender status.
Appellant denied the charge of rape, and he asserted at trial that Helen
had invented the allegation as retaliation against him because he had objected
to her romantic involvement with an eighteen-year old boy. Contrary to her
earlier statements, Helen testified at trial that Appellant had raped her on
many occasions. The jury returned a guilty verdict and judgment was entered
as noted above. On appeal, Appellant raises five grounds for reversal.
1 Helen is a pseudonym we have used to protect the privacy of the minor
involved.
2
II. SUFFICIENCY OF THE EVIDENCE
Appellant first contends that he was entitled to a directed verdict on the
first-degree rape charge. Our standard for review of such claims is well
established in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). On
appellate review, the reviewing court may only direct a verdict "if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt."
Id. at 187. See also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983)
("The trial court must draw all fair and reasonable inferences from the evidence
in favor of the [Commonwealth], and a directed verdict should not be given
unless the evidence is insufficient to sustain a conviction.").
To convict on first-degree rape by forcible compulsion, the
Commonwealth must show that the accused engaged in sexual intercourse
with another person, without that person's consent, by using "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, fear of the
immediate kidnap of self or another person, or fear of any offense under [KRS
Chapter 510]." KRS 510.010(2). Upon review of the record, we are satisfied
that the Commonwealth met that burden. Sufficient evidence was presented at
trial to support a reasonable juror's belief that Appellant engaged in conduct
that met the statutory standard for first-degree rape.
Helen testified that Appellant entered her bedroom, told her to lie down
on her bed, put his hands around her throat, and sexually penetrated her with
his penis against her will. She testified that afterward, Appellant threatened
3
that he would kill her, her mother, her brother, and himself if she told anyone
what had happened. Helen testified that Appellant's act caused her pain and
vaginal bleeding. In addition, testimony provided by sexual assault nurse
examiner Alicia Cook established that there was physical evidence to support
the allegation. Cook testified that her physical examination of Helen revealed
indications of trauma to the victim's vaginal area, including a tear on the
posterior fourchette, which despite the intact hymen, could have been the
result of penile penetration. The injury to the victim's genital area supports the
allegation of forced sexual activity.
Appellant argues that the evidence tending to establish his guilt was so
convincingly negated by exculpatory evidence that, as a whole, the proof was
more consistent with his innocence than his guilt, and therefore, the finding of
guilt was clearly unreasonable under the Benham and Sawhill standard. He
cites testimony which showed that he had a "father-daughter" relationship with
Helen; Helen's inconsistent statements regarding the number of times she had
been raped; her delay in reporting the rapes; and the fact that she only
reported the rapes while staying with a friend. He also cites evidence casting
doubt upon Helen's credibility, including her motive to fabricate the charge
because Appellant objected to her relationship with an eighteen-year old boy
and her lies to conceal her relationship with the boy. Appellant also contends
that because the victim cried and was emotional during her testimony that the
jury's verdict was a product of passion and prejudice brought about by the
victim's poignant testimony.
4
We disagree with Appellant's position. It is well established that a jury is
free to believe the testimony of one witness over the testimony of others. See
Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky. App. 1977). In ruling
upon Appellant's motion, the trial court was required to construe conflicting
evidence in the light most favorable to the Commonwealth. Benham, 816
S.W.2d at 187. The testimony of a single witness is enough to support a
conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky. 2005)
(citing LaVigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky. 1962)).
Further, matters of credibility and of the weight to be given to a witness's
testimony are solely within the province of the jury. An appellate court cannot
substitute its judgment on such matters for that of the jury. Brewer v.
Commonwealth, 206 S.W.3d 313, 319 (Ky. 2006) (citing Commonwealth v.
Jones, 880 S.W.2d 544, 545 (Ky. 1994)). Therefore, we may not simply reject
the victim's testimony and instead choose to believe Appellant's version
because "[d}etermining the proper weight to assign to conflicting evidence is a
matter for the trier of fact and not an appellate court." Washington v.
Commonwealth, 231 S.W.3d 762, 765 (Ky. App. 2007) 2 (citing Bierman v.
Klapheke, 967 S.W.2d 16, 19 (Ky. 1998)).
Based upon the evidence as a whole, and upon viewing that evidence in
the light most favorable to the verdict, we are constrained to conclude that it
was not unreasonable for a jury to believe that Appellant raped the victim by
2 Overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky.
2010) (reversed and remanded by Kentucky v. King, 131 S. Ct. 1849 (2011)).
5
forcible compulsion. Accordingly, the trial court did not err in denying
Appellant's motion for a directed verdict on the first-degree rape charge.
III. PROSECUTORIAL MISCONDUCT ISSUES
Appellant next argues that he was denied a fair trial becauSe the
prosecutor persistently and deliberately engaged in misconduct. Specifically
Appellant contends that prosecutorial misconduct occurred when the
prosecutor: (1) accused the defense of fabricating evidence, of having its
witnesses lie on the stand, of the defense witnesses collaborating with one
another about their testimony, and accusing defense counsel of lying; (2) failed
to make timely disclosure of the victim's inconsistent allegation of multiple
rapes; 3 (3) failed to make timely disclosure of Alicia Cook's medical report; 4
(4) accused defense counsel of fabricating evidence and lying to the trial court
in connection with a screenshot of the victim's Facebook page; (5) implied that
witnesses for the defense were testifying from a "script" prepared by defense
counsel and the victim's mother; (6) accused defense counsel during cross-
examination of the victim of "being argumentative and badgering this little girl";
(7) stated rhetorically aloud, "That's sad, you know that," in response to the
victim's testimony that she could not trust anyone; (8) during a recess
approached in an intimidating manner a sixteen-year old witness without the
witness's parents being present, which Appellant claims was an attempt to
3 This allegation of error was clearly preserved for appellate review and is
discussed in the following section of this opinion.
4 This allegation of error was clearly preserved for appellate review and is
discussed in the following section of this opinion.
6
intimidate the witness; and (9) knowingly asked improper questions and then
responded to trial counsel's objection by chuckling and withdrawing the
improper question.
The Commonwealth responds that, with two exceptions, none of the
above allegations were preserved for appellate review by a contemporaneous
objection at trial. 5 To rebut the claim of inadequate preservation, Appellant
notes that his brief cited to nineteen points in the video record where he
objected to the prosecutor's misconduct. However, Appellant merely provided a
list of citations to the record without indicating how any particular point
relates to any particular allegation of misconduct. CR 76.12(4)(c)(v) requires
the argument in support of each claim to have "ample supportive references to
the record and citations of authority pertinent to each issue of law and . . . at
the beginning of the argument a statement with reference to the record
showing whether the issue was properly preserved for review and, if so, in what
manner." Appellant's collage of citations to the video record without correlating
them to a specific issue does not comply with 76.12(4)(c)(v). When an appellate
advocate fails to abide by this rule our options are: (1) to ignore the deficiency
and proceed with the review; (2) to strike the brief or its offending portions, CR
76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice
only. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
Here, we employ the third option and examine Appellant's argument of
prosecutorial misconduct for manifest injustice only. "Where there was no
5 See n. 3 and n. 4.
7
objection [to prosecutorial misconduct], we will reverse only where the
misconduct was flagrant and was such as to render the trial fundamentally
unfair." Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010).
Generally, Appellant's claims of prosecutorial misconduct consist of
demeaning comments that tend to degrade Appellant's case and his witnesses,
insinuations of a defense effort to present false testimony at trial, and attempts
to sway the jury with undue sympathy for the victim. Upon review, we are
unpersuaded that these tactics, individually or cumulatively, resulted in a
manifest injustice or rendered the trial fundamentally unfair. RCr 10.26.
"Manifest injustice" requires showing a probability of a different result or error
so fundamental as to threaten a defendant's entitlement to due process of law,
i.e., the error so seriously affected the fairness, integrity, or public reputation of
the proceeding as to be "shocking or jurisprudentially intolerable." Martin v.
Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006). While we may find some of the
prosecutor's behavior at trial to be offensive, we cannot say that Appellant is
entitled to relief under the manifest injustice standard.
IV. DISCOVERY VIOLATION ISSUES
Appellant next claims that he was deprived of a fair trial because the
Commonwealth failed to make timely disclosure of exculpatory evidence
contained in (1) the medical report prepared by Alicia Cook in connection with
her physical examination of Helen; and (2) Helen's prior statements that
Appellant had raped her on multiple occasions.
8
Appellant frames this issue as violations of Brady v. Maryland, 373 U.S.
83 (1963). Under Brady and its progeny, a defendant's due process rights are
violated when the prosecution fails to disclose material exculpatory evidence to
the defense, regardless of the prosecution's good or bad faith. Id. at 87; United
States v. Agurs, 427 U.S. 97, 107 (1976). Impeachment evidence is included
within the scope of exculpatory evidence that is subject to Brady. United
States v. Bagley, 473 U.S. 667, 676 (1985).
However, the disclosure requirement applies only to "those cases in
which the government possesses information that the defense does not."
Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002). Further, "Brady
applies only to the discovery, after trial, of information which had been known
to the prosecution but unknown to the defense."' Id., (quoting Agurs, 427 U.S.
at 103) (emphasis added). In other words, Brady and its progeny address
situations in which a defendant goes through a trial unaware of the availability
of exculpatory information withheld by the prosecution. Here however,
Appellant became aware of Cook's report and the victim's prior inconsistent
statement either before or during his trial, and so Brady is not directly
implicated. Instead, RCr 7.24 is the controlling authority which will guide our
review of the issues presented in this argument. This rule broadly requires,
among other things, the prosecution to provide a defendant with disclosure of
information in its possession which is material to his defense. RCr 7.24(9)
provides the remedy:
9
If at any time during the course of the proceedings it is brought to
the attention of the court that a party has failed to comply with
this rule or an order issued pursuant thereto, the court may direct
such party to permit the discovery or inspection of materials not
previously disclosed, grant a continuance, or prohibit the party
from introducing in evidence the material not disclosed, or it may
enter such other order as may be just under the circumstances.
"[A] trial court generally has broad discretion under RCr 7.24(9) to impose an
appropriate sanction for a discovery violation." Jones v. Commonwealth, 237
S.W.3d 153, 157 (Ky. 2007). With these principles in mind we now address the
two areas of alleged discovery violations raised by Appellant.
A. Medical Examination Report
In connection with the rape investigation, Cook examined Helen and
prepared a report that was subject to the trial court's pre-trial discovery order.
Despite earlier claims of the Commonwealth that no medical report existed, one
week before the trial, defense counsel was given a copy of Cook's three-page
report. 6 The late disclosure prompted Appellant to move to suppress the report
and to prohibit Cook from testifying.
To resolve the pending motion, and apparently to ascertain the tenor of
Cook's anticipated testimony, on the second day of trial the court allowed the
parties to examine Cook outside the presence of the jury. It was at that point
that Cook revealed a fact she had omitted from the written report: the victim's
hymen was intact and undamaged, although other indications of vaginal
trauma were present. Cook agreed that her observations were consistent with
6 The Commonwealth asserts that it was unaware of the report's existence until
a week before the trial at which time it promptly supplied the report to defense
counsel.
10
Helen's claim of being raped once. Cook further admitted that the intact
hymen made it possible that Helen was a virgin and unlikely that she had been
raped on multiple occasions as she claimed at trial.
After Cook's in camera testimony, the Commonwealth elected not to call
her as a witness. Appellant promptly withdrew his objection to Cook's
testimony and instead elected to call her as a witness for the defense. He now
argues that these late disclosures prevented him: 1) from getting his own
expert on the possibility of rape despite the intact hymen; 2) from examining
the jury on the subject during the voir dire stage; and 3) discussing those facts
in his opening statement. Instead, defense counsel was left between a rock
and hard place: he could ask for a mistrial and a continuance to better prepare
a defense based upon the recent disclosure, which would further prolong
Appellant's pretrial incarceration; or, he could make the best of the evidentiary
turn by using the newly discovered information to his best advantage.
Appellant chose the latter.
We appreciate the difficult and stressful challenges that trial attorneys
face in even the best of circumstances, and we recognize the difficulties
presented when sudden disclosures change the evidentiary landscape. When
late disclosures are caused by an opposing party, whether from excusable
neglect or deliberate deception, we must be attentive to remedy any injustice
that results. But, by parsing out the particulars of Appellant's argument, we
come to the conclusion that no violation occurred here.
11
The central point of Appellant's claim is that he was prejudiced because
he was not told prior to trial that the physical examination of the victim
disclosed an intact hymen. There is, however, no indication that the
Commonwealth was aware of the fact any sooner than Appellant. The
Commonwealth claims that it, too, was caught off-guard when, on the second
day of the trial, Cook first mentioned it. The Commonwealth's sudden decision
not to call Cook as its witness tends to support that claim of ignorance. The
rules for discovery in criminal cases do not require the Commonwealth to
disclose information it does not have. RCr 7.24. To establish a due process
violation based upon a failure to disclose exculpatory information, it must be
shown that the prosecutor, in good faith or bad, knew of the evidence and
failed to disclose it. Nunley v. Commonwealth, 393 S.W.3d 9, 13 (Ky. 2013).
The prosecution was under no obligation or affirmative duty to acquire that
information. Appellant's claim that he was prejudiced by a late disclosure of
the medical report is unavailing because the exculpatory evidence he
complains about was not in the written report. Having the report sooner would
not have prevented the dilemma he faced at trial.
In summary, we find no grounds upon which Cook's testimony or the
late disclosure of her medical report would warrant reversal. Under the
circumstances before us, we are simply unable to discern any error in the trial
court's rulings relating to the medical report or to Cook's testimony.
12
B. Prior Inconsistent Statements
As previously noted, Helen made conflicting statements about the
number of times Appellant had raped her. She told the 911 operator that it
happened' "like three times." On several other occasions before trial, including
in her grand jury testimony, she said Appellant had raped her only one time.
At trial, she testified that Appellant had raped her so many times in fact that
she lost count.
At trial, the Commonwealth conceded that it had known for several
weeks prior to trial that Helen had made numerous inconsistent statements
about the number of times Appellant had raped her. Based upon the failure to
disclose that information prior to trial, Appellant moved for a mistrial. The trial
court agreed that the prosecution should have disclosed that information, but
it nevertheless denied Appellant's motion. The trial court reasoned that
Appellant was aware of Helen's statement to the 911 dispatcher and therefore
was on notice prior to trial that the victim had previously claimed that
Appellant had raped her more than one time.
We agree with the trial court. Under the present circumstances, where
Appellant was aware of and was able to impeach the witness on her
inconsistent statements, the failure of the Commonwealth to disclose all of the
known occasions upon which the victim made similar inconsistent claims did
not result in a manifest necessity for a mistrial. Winstead v. Commonwealth,
327 S.W.3d 386, 402 (Ky. 2010) (A party must make a clear showing of
"manifest necessity" for a mistrial, and we review a trial court's denial of a
13
motion for a mistrial for an abuse of discretion). Appellant was able at trial to
impeach the victim's testimony by cross-examining her upon her multiple prior
inconsistent statements that there had been only one sexual assault. A
manifest necessity occurs only when the error is "of such character and
magnitude that a litigant will be denied a fair and impartial trial and the
prejudicial effect can be removed in no other way [except by grant of a
mistrial]." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996). While
the Commonwealth's failure to disclose all of the known occasions upon which
the victim made inconsistent statements relevant to the crime was a violation
of RCr 7.24, the error did not result in the level of prejudice required to
establish a manifest necessity to terminate the proceedings.
In summary, we are unpersuaded that the delayed production of the
medical examination report and the victim's inconsistent statement were errors
such as would require the reversal of Appellant's conviction and sentence.
V. EXCLUSION OF JUVENILE COURT PETITION AGAINST VICTIM DID
NOT DEPRIVE APPELLANT OF HIS RIGHT TO PRESENT A DEFENSE
Appellant next contends that the trial court erred by prohibiting him
from introducing into evidence a juvenile court petition relating to Helen that
was filed by her mother. The petition charged that Helen was "beyond control"
of her parents because she was not following the rules of household and was
attempting to date an eighteen-year old boy against her parents' will. The trial
court ruled that the juvenile court pleading could not be introduced into
14
evidence because it was hearsay. On appeal, Appellant frames this argument
as a denial of his "right to present a defense."
The defense that Appellant sought to present was that Helen had
fabricated the allegations against him as retaliation for his disapproval of her
desire to date an older boy. The juvenile court petition asserted that "[Helen]
will not obey the household rules, said juvenile has been communicating with
over 18 years old [sic]; social workers have been investigated [sic] said case and
requested that the family file beyond control." Appellant wanted to introduce
the report to corroborate his claim that the victim had, indeed, been dating an
older boy, thereby lending credence to his theory about her motive to lie about
being raped. There is no doubt that the petition is an out-of-court statement
that Appellant sought to use as evidence to prove the truth of the matters
asserted in the petition. The statement was clearly hearsay. KRE 801(c).
Under the United States Constitution and the Kentucky Constitution, an
accused has a right to present a complete and meaningful defense. Brown v.
Commonwealth, 313 S.W.3d 577, 624-25 (Ky., 2010). "An exclusion of evidence
will almost invariably be declared unconstitutional when it significantly
undermine[s] fundamental elements of the defendant's defense." Beaty v.
Commonwealth, 125 S.W.3d 196, 206-07 (Ky. 2003) (citation and internal
quotation omitted). But the right to present a defense does not abrogate the
rules of evidence. "[T]he defendant's interest in the challenged evidence must
be weighed against the interest the evidentiary rule is meant to serve, and only
if application of the rule would be arbitrary in the particular case or
15
disproportionate to the state's legitimate interest must the rule bow to the
defendant's right." McPherson v. Commonwealth, 360 S.W.3d 207, 214 (Ky.
2012) (citations omitted); Newcomb v. Commonwealth, 410 S.W.3d 63, 85-86
(Ky. 2013).
In weighing Appellant's evidentiary interest in the juvenile court pleading
against the jurisprudential interests served by the hearsay rule, we are
satisfied that the trial court's application of the hearsay rule was neither
arbitrary, nor was it disproportionate to the state's legitimate interest in the
enforcement of this most basic and fundamental rule of evidence. Moreover,
since the evidentiary content of the juvenile court document that Appellant
wanted to introduce consisted entirely of statements made by Helen's mother,
Appellant could have simply called her as a witness and examined her on the
subject, thereby obtaining the same evidence in a manner that was consistent
with, not in derogation of, our rules of evidence.
In the alternative, Appellant now asserts for the first time, that the
evidence was admissible under the exception to the hearsay rule for business
and/or public records exception. See Combs v. Stortz, 276 S.W.3d 282, 295
(Ky. App. 2009) ("KRE 803(6), (8), and (10) provide hearsay exceptions for
records which are maintained by businesses and public agencies. Those rules
require that minimal foundation be laid for the introduction of such records
when self-authenticated under KRE 902.")
Appellant failed to assert this ground for admissibility at trial, and so
may not raise this theory for the first time on appeal. See Kennedy v.
16
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds
by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)).
Moreover, Helen's brother testified that Helen had animosity toward
Appellant because of his opposition to her boyfriend, and that she had
threatened to have Appellant put in jail if she was not allowed to date.
Furthermore, a juvenile court worker testified that the beyond-parental-control
petition had been filed. Consequently, we are satisfied that Appellant was not
deprived of the opportunity to present his defense.
VI. EVIDENCE OF APPELLANT'S PAST DRUG USE
On direct examination, and not in response to the question posed by the
prosecutor, Helen spontaneously testified that she had on occasion purchased
illegal drugs for Appellant. Appellant objected and moved for a mistrial. The
trial court overruled the objection based upon the rationale that the
information was admissible under KRE 404(b)(2). As a follow up, Helen, was
then permitted to testify that Appellant used drugs every day.
KRS 404(b) prohibits the admission of evidence of other crimes, wrongs,
or acts to prove the character of a person in order to show action in conformity
therewith. An exception to this general rule is codified in KRE 404(b)(2) such
that prior bad act evidence may be introduced if it is "so inextricably
intertwined with other evidence essential to the case that separation of the two
(2) could not be accomplished without serious adverse effect on the offering
party." As Professor Lawson points out, the words of KRE 404(b)(2)
("inextricably intertwined with other evidence essential to the case") "are
17
designed to be flexible enough to permit the,state to present a complete and
realistic picture of the crime committed by the defendant, including necessary
context . . . and perspective." Robert G. Lawson, The Kentucky Evidence Law
Handbook, § 2.25[4][b] (4th ed. 2003).
One of the accepted bases for the admissibility of evidence of other
crimes arises when such evidence "furnishes part of the context of
the crime" or is necessary to a "full presentation" of the case, or is
so intimately connected with and explanatory of the crime charged
against the defendant and is so much a part of the setting of the
case and its "environment" that its proof is appropriate in order "to
complete the story of the crime on trial by proving its immediate
context [ 1."
Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994); see also Webb
v. Commonwealth, 387 S.W.3d 319 (Ky. 2012).
The Commonwealth argues that the evidence was properly admitted
because its overall theory of the case was, that during the period when the rape
occurred Appellant exercised an extraordinary level of "domination and control"
over the victim and the rest of the household. In this vein other evidence was
elicited to the effect that Appellant had the windows of the home boarded;
would not allow the victim to leave the house; that the victim's brother usually
stayed away from the house; that Appellant beat the victim and Appellant's
mother; that the victim's mother would lie to social services about the beatings;
and that Appellant would go looking for her if she was delayed in returning
home from school. Thus, the trial court reasoned that having Helen buy drugs
was part and parcel to Appellant's "domination and control" over her during
the time of the sexual assault.
18
The standard of review for a trial court's evidentiary rulings is abuse of
discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.
2000). The test for abuse of discretion is "whether the trial judge's decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Certainly there are situations in which a defendant's drug use is
inextricably intertwined with the crime, and thus is admissible under KRE
404(b)(2). But, this is not such a case. Helen's claim that Appellant used
drugs every day and that he would send her to buy drugs was not necessary for
a complete and realistic picture of the forcible rape, including any necessary
context and perspective for it. There is simply no other evidence linking
Appellant's drug use to the rapes. The Commonwealth's evidence of
Appellant's role in the household generally established his "domination and
control" over fourteen-year old Helen, and the evidence of his drug use did
nothing to further prove the point.
At most, the drug evidence was only marginally relevant under KRE 401
and its probative value was substantially outweighed by the risk of undue
prejudice. KRE 403; Bell v. Commonwealth, 875 S.W.2d 882, 888-91 (Ky.
1994) (evidence of prior bad acts pursuant to KRE 404(b) should be excluded
even if relevant and probative if its probative value is substantially outweighed
by its prejudicial effect). Undue prejudice is most often found when there is a
risk that the evidence "might produce a decision grounded in emotion rather
than reason" or where the evidence "might be used for an improper purpose."
19
Kentucky Evidence Law at § 2.15[3][b]. See, e.g., Purcell v. Commonwealth, 149
S.W.3d 382, 400 (Ky. 2004) 7 (although prior acts of sexual voyeurism were
relevant and probative, evidence should have been excluded because of its
devastating effect in that it encouraged conviction because of "what [defendant]
was, rather than what he did on the occasion of the charged offense."); Brown
v. Commonwealth, 313 S':W.3d 577, 618 (Ky. 2010) (evidence is unduly
prejudicial if it will induce the jury to decide a case based on an emotional
response rather than the evidence presented.).
The trial court abused its discretion by allowing Helen's testimony of
Appellant's drug use to be admitted into evidence under KRE 404(b)(2).
Nevertheless, the presentation of the evidence was fleeting and was not
otherwise emphasized by the Commonwealth. Since it was not used as a
prosecutorial tool and did not tend to bolster the victim's version'of events nor
denigrate Appellant's denial, we are further persuaded that the error did not
substantially sway the verdict and was, therefore, harmless. Winstead v.
Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).
VII. CONCLUSION
For the foregoing reasons, the judgment of the Perry Circuit Court is
affirmed.
All sitting. All concur.
7 Overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky.
2010)
20
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department Of Public Advocacy
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Taylor Allen Payne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
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