Patrick Christopher Noble v. Commonwealth of Kentucky ( 2022 )

RENDERED: OCTOBER 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1400-MR
PATRICK CHRISTOPHER NOBLE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 19-CR-00559-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
DIXON, JUDGE: Patrick Christopher Noble appeals from the judgment and
sentence on his conditional guilty plea entered by the Fayette Circuit Court on
November 23, 2021. Following a careful review of the record, briefs, and law, we
affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Patrick Christopher Noble is an uncle by marriage to Crystal Annette
Secrest. Secrest is the biological mother of E.C.E., who was eight years old at the
time the abuse described herein occurred. When Noble, Secrest, and her children
lived in Indiana, Secrest forced E.C.E. to watch her perform oral sex on Noble and
then do the same. Secrest1 also took explicit pictures of E.C.E. In 2018, Secrest
and her children moved to Lexington, Kentucky. Unfortunately, however, Noble’s
and Secrest’s abuse of E.C.E. continued in Kentucky where she was repeatedly
forced to perform oral sex on Noble and pose for nude pictures.
E.C.E. eventually told her babysitter what Noble – whom she referred
to as “Uncle Pat”2 – and Secrest did to her, and the babysitter reported the abuse to
police. Police later visited Secrest and observed text messages exchanged between
Secrest and Noble – who was identified in Secrest’s phone as “Sexy Devil.” Noble
texted Secrest to “delete and hide cell.” Secrest disassembled and left her cell
phone behind when she went to the police station for interrogation. Police
obtained a warrant, examined Secrest’s phone, and found 18 images of E.C.E.
portraying a sexual performance.
1
E.C.E. testified that Noble and Secrest made her pose for elicit pictures. Likely because Noble
was arrested three months after Secrest, no pictures of E.C.E. were found in Noble’s possession.
It was discovered that 263 images were removed from his phone, but they were unrecovered.
2
E.C.E. also testified that Noble and Secrest referred to Noble as “Master,” Secrest as “Scorp,”
and E.C.E. as “Princess” and made her use these names as well.
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Noble and Secrest were ultimately indicted together – Noble for one
count of first-degree sodomy with a victim under 12 years of age, and Secrest for
one count of promoting sexual performance by a minor under 16 years old, one
count of first-degree facilitation to sodomy, 18 counts of possessing matter
portraying sexual performance by a minor, two counts of endangering the welfare
of a minor, and two counts of fourth-degree assault. Noble moved the trial court to
sever all of Secrest’s counts except the facilitation to sodomy. The
Commonwealth responded, noting Noble texted Secrest for a “pic . . . but not of
you.” That text, coupled with the one instructing Secrest to delete and hide her
phone and E.C.E.’s testimony, shows Noble had knowledge of the pictures of
E.C.E. and demonstrates the counts were “based on the same acts or transactions
connected together or constituting parts of a common scheme or plan.” RCr3 6.18.
After a hearing, and by agreement of the parties, the trial court severed only
Secrest’s two counts of endangering the welfare of a minor and two counts of
fourth-degree assault.
The Commonwealth filed notice of its intent to introduce evidence of
other crimes, wrongs, or acts at trial in the form of testimony relating to the acts
perpetrated against E.C.E. in Indiana to prove “opportunity, intent, . . . plan,
3
Kentucky Rules of Criminal Procedure.
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knowledge, identity, or absence of mistake or accident” pursuant to KRE4 404(b).
The Commonwealth asserted that evidence concerning the Indiana acts was “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.” Id. Unsurprisingly, Noble and Secrest objected to introduction of
this evidence. The trial court deemed the evidence admissible, however, to show a
common purpose or scheme, specifically finding the probative value outweighed
any prejudicial effect.
Following these rulings, Noble petitioned the trial court to enter his
conditional guilty plea. After the judgment and sentence was entered on his
conditional guilty plea, this appeal followed.
STANDARD OF REVIEW
We review a trial court’s denial of a motion to sever for abuse of
discretion. Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011); Parker v.
Commonwealth, 291 S.W.3d 647 (Ky. 2009); Bratcher v. Commonwealth, 151
S.W.3d 332 (Ky. 2004). Likewise, our standard of review for a trial court’s rulings
on evidentiary issues is whether the trial court abused its discretion. Manus, Inc. v.
Terry Maxedon Hauling, Inc., 191 S.W.3d 4 (Ky. App. 2006). “The test for abuse
of discretion is whether the trial judge’s decision was arbitrary, unreasonable,
4
Kentucky Rules of Evidence.
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unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
ANALYSIS
On appeal, Noble first argues the trial court erred by refusing to sever
from the indictment Secrest’s count of promoting sexual performance by a minor
under 16 years old and counts for possessing matter portraying sexual performance
by a minor. Noble cites RCr 8.31, which states “[i]f it appears that a defendant . . .
will be prejudiced by a joinder of offenses . . . in an indictment, information,
complaint or uniform citation or by joinder for trial, the court shall order separate
trials of counts . . . or provide whatever other relief justice requires.” The Supreme
Court of Kentucky has commented on this rule, observing:
Because a certain degree of prejudice is inherent in the
joinder of offenses, as it is in any indictment, this Court
has explained that the “prejudice” calling for severance
or other relief under RCr 9.16 is “undue prejudice,” i.e.,
prejudice that goes beyond the inherent prejudice to that
which is unnecessary and unreasonable. Romans v.
Commonwealth, 547 S.W.2d 128 (Ky. 1977). Although
our rule mandates relief when such undue prejudice
appears likely, we have entrusted application of the rule
to the trial court’s discretion, [Debruler v.
Commonwealth, 231 S.W.3d 752 (Ky. 2007)] and we
have many times noted that an erroneous severance
ruling does not justify appellate relief unless it resulted in
actual prejudice to the party opposing the ruling.
Cohron v. Commonwealth, 306 S.W.3d 489 (Ky. 2010)
(citing Sherley v. Commonwealth, 889 S.W.2d 794 (Ky.
1994)).
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Peacher v. Commonwealth, 391 S.W.3d 821, 838 (Ky. 2013) (emphasis added).
Noble claims there was an insufficient nexus between or among the
joined crimes. The Commonwealth contends there was a common scheme or plan
in that Secrest taught E.C.E. how to perform oral sex on Noble, E.C.E. was forced
to perform oral sex on Noble, and the photographs were taken to promote this
sexual performance. The Commonwealth also notes the photographs were taken in
Lexington, Kentucky, during the same period the sodomy occurred. Noble,
however, claims there could have been up to three months between the two
crimes;5 therefore, he asserts the pictures and sodomy were not part of a single
transaction. Noble also challenges the joinder of Secrest’s charges regarding
promoting sexual performance by a minor and possession of the photographs
because he claims those crimes were irrelevant to the sodomy. Noble asserts those
images were not found on his phone and “there was no evidence he was involved
with the pictures”; yet, his claims are belied by E.C.E.’s testimony. Accordingly,
the trial court did not abuse its discretion by not severing those charges.
Noble further contends the joinder of his charge with those of Secrest
was improper because it was prejudicial to him. He claims his case is like
Hammond v. Commonwealth, 366 S.W.3d 425 (Ky. 2012). Although, in
5
We find this claim to be improbable due to the period being from October to December and
E.C.E. testifying that sodomy occurred over Thanksgiving break.
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Hammond, the Supreme Court found the joinder of three separate murder charges
was erroneous and prejudicial where no serious contention was made that the
murders were connected as part of the “same acts or transactions connected
together or constituting parts of a common scheme or plan.” Thus, the rationale
for joinder under RCr 9.12/RCr 6.18 had no application in that case.
By contrast, in the case herein, the remaining charges relate to the
ongoing sexual abuse of one victim over a three-month period. Noble relies
heavily on the fact that no pictures of E.C.E. were found on his phone;
nevertheless, there is evidence he requested a “pic” from Secrest but not of her, he
instructed Secrest to delete and hide her phone, and 263 images were deleted from
his phone. Regardless, Noble has failed to show he was unduly prejudiced by the
decision not to sever the charges. Therefore, we cannot say the trial court abused
its discretion.
Noble next argues the trial court erred when it allowed the
Commonwealth to introduce evidence of Noble’s and Secrest’s abuse of E.C.E. in
Indiana pursuant to KRE 404(b). Under KRE 404(b), “[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” unless it is “offered for some other purpose,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident” or it is “so inextricably intertwined with other
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evidence essential to the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering party.” Noble admits
that KRE 404(b) “allows the Commonwealth to present a complete, unfragmented
picture of the crime and investigation.” Adkins v. Commonwealth, 96 S.W.3d 779,
793 (Ky. 2003). Nevertheless, Noble protests that such is not the case herein. He
claims the acts of abuse against E.C.E. in Indiana had nothing to do with the abuse
she endured in Kentucky and does not fall within the “inextricably intertwined”
exception. Even so, it is sufficient for the evidence to be “offered for some other
purpose, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident” to be admissible under
KRE 404(b), which it clearly does. Thus, the trial court did not err by admitting
this evidence for those “other” purposes.
Noble, however, maintains that evidence regarding the abuse of
E.C.E. in Indiana neither established a common scheme nor modus operandi
relating to her Kentucky abuse. In support of this argument, he cites to a case
predating KRE 404, which states:
In every case in which evidence of other crimes is sought
to be introduced to establish a pattern or scheme, the real
question is whether the method of the commission of the
other crime or crimes is so similar and so unique as to
indicate a reasonable probability that the crimes were
committed by the same person. If it does so, evidence
that the defendant committed the other crime is
admissible. If it only tends to show a tendency or
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disposition to commit a crime, the evidence is not
admissible.
Adcock v. Commonwealth, 702 S.W.2d 440, 443 (Ky. 1986). In Adcock, two
similar crimes committed within six months in the same household and against the
same person were found to be similar enough to constitute “signature” crimes.
Additionally, it is widely accepted that “evidence of other sex activities of the
same nature committed with and upon the same person is competent[.]” Price v.
Commonwealth, 31 S.W.3d 885, 888 n.4 (Ky. 2000).
In the case herein, the acts of sexual abuse were of the same nature
and conducted in a similar manner in Indiana as in Kentucky and against the same
victim. Moreover, the trial court properly relied upon the exceptions provided in
KRE 404(b) to allow admission of the evidence without having to find the crimes
were of the so-called “signature” variety. Regardless, we cannot say the trial court
erred in finding the evidence of the Indiana acts as part of a “common scheme”
with the Kentucky acts since all demonstrated the ongoing sexual abuse of E.C.E.
by Noble and Secrest.
Noble’s final argument is that the evidence of his and Secrest’s sexual
abuse of E.C.E. in Indiana fails the “three-part test” provided in Bell v.
Commonwealth, 875 S.W.2d 882 (Ky. 1994), which mandates a court look at
relevance, probativeness, and prejudice when determining whether KRE 404(b)
evidence is admissible. Here, the trial court found that the evidence was relevant
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and probative, and that the probative value outweighed any prejudice. Noble failed
to prove that the trial court erred in those findings. Consequently, and because the
trial court did not abuse its discretion in allowing the evidence to show a common
purpose or scheme, we affirm.
CONCLUSION
Therefore, and for the foregoing reasons, the judgment and sentence
entered by the Fayette Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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