Billings v. Com.

• Decision Date: 17 December 1992
• Docket Number: No. 91-SC-317-MR,91-SC-317-MR
• Citation: 843 S.W.2d 890
• Parties: Aubrey Marion BILLINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 890

843 S.W.2d 890

Aubrey Marion BILLINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 91-SC-317-MR.

Supreme Court of Kentucky.

Dec. 17, 1992.

Stewart B. Elliott, Owensboro, for appellant.

Chris Gorman, Atty. Gen., Ann Louise Cheuvront, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

COMBS, Justice.

Aubrey Marion Billings was convicted of two counts of sodomy in the first degree and two counts of sodomy in the second degree, all committed against a single victim, his stepdaughter. He was sentenced to twenty years' imprisonment, and appeals to this Court as a matter of right.

Three issues are presented: 1) whether the trial court erred in admitting testimony by the complaining witness' sister concerning Billings' alleged sexual misconduct toward her; 2) whether the trial court erred in excluding defense testimony concerning the complaining witness' alleged sexual relationship with Billings' son; and 3) whether the trial court erred in refusing to instruct the jury on the lesser included offense of sexual abuse in the first degree.

The complaining witness, age 15 at the time of trial, testified that Billings had had oral sexual contact with her on two occasions in August of 1986, when she was about 11 years old. She further stated that Billings had subjected her to oral sex and sexual intercourse many times between August 1988 and January 1989, during which time she was age 13.

Over objection in limine, the complaining witness' younger sister was permitted to testify that, several years before, Billings had on two occasions touched her between the legs (while she was fully clothed), had on another occasion exposed himself to her, and had encouraged her to watch sexually explicit movies. The principal issue on appeal is whether this evidence was properly admitted.

Our experience has been that the rules governing the admission of such evidence are more easily stated (and mis-stated) than applied. Against the hoary proposition that we welcome any evidence tending to make a material fact, i.e., an element of the offense, appear more likely or less likely than it would appear absent that evidence, is counterpoised the equally venerable rule that a defendant may not be convicted on the basis of low character or criminal predisposition, even though such character or predisposition makes it appear more likely that the defendant is guilty of the charged offense. The upshot is that evidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal predisposition, and only if its probative value on that issue outweighs the unfair prejudice with respect to character.

The traditional statement of the rule recognizes that such evidence may be admissible as probative of "motive, intent, knowledge, identity, plan or scheme, or absence of mistake or accident." O'Bryan v. Commonwealth, Ky., 634 S.W.2d 153, 156 (1982). ¹ It is readily seen that evidence assignable to each of these categories, in both traditional and recent formulation, may be relevant to the proof of one or more of the fundamental elements of a crime: the corpus delicti, identity, and mens rea.

In the present case--as in many involving charges of sexual crimes--the ascendant issue is the corpus delicti--whether the event occurred at all. And on this issue is the application of the evidentiary rules most problematic. Unless the collateral act has some direct relationship to the charged act, the inference that the charged act occurred is necessarily founded on nothing more than the defendant's character and predisposition as revealed by the collateral act.

In cases of this nature, ² we have long recognized that the degree of similarity between the charged and the uncharged acts is a critical factor in establishing a direct relationship independent of character. As the degree of similarity increases, and a modus operandi appears, inferences are more likely to be drawn from the events' common facts rather than their common criminality.

But what inferences are drawn, and on what issue? We have had considerable difficulty in assigning even similar acts to one of the categories of admissibility, when the issue is the corpus delicti. In Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1974), we appeared to create a new category--"lustful inclination"--to accommodate evidence of similar or identical sexual crimes. We might just as well have termed it "motive." That treatment, by either term, would logically require for admissibility only that the charged and uncharged acts involve sexual crimes. It is equivalent to saying that greed, as evidenced by shoplifting, may be proven as a motive for robbery.

Russell was expressly overruled in Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985), wherein we declared that the same standard of admissibility applies to trials for sexual crimes as to trials for other offenses. While recognizing that the exceptions allowing evidence of collateral criminal acts "must be strictly construed" (id. at 552), we proceeded to expand the traditional "plan or scheme" category to accommodate evidence showing a "pattern of conduct." We upheld the admissibility of evidence of the defendant's acts of sexual abuse against the victim's sister, even though those acts did not involve sexual intercourse (whereas Pendleton was charged with rape and sodomy).

Our discomfort with the "pattern of conduct" rule was apparent in the decision of Lantrip v. Commonwealth, Ky., 713 S.W.2d 816 (1986), where we held inadmissible the testimony of two female witnesses that the defendant, charged with raping his minor daughter, had made improper sexual advances toward them. We said:

His conduct on those occasions, as described by the witnesses, was not so similar to [that] exhibited toward [the complaining witness] as to establish a method or pattern of operation which in itself would identify appellant as the perpetrator of the acts in question. In fact, there is no question of identity present in this case.

Id. at 816. The conclusion must be that two acts involving sexual crimes are not necessarily "similar." In addition, although finding no issue of identity in that case, we indicated that bad acts evidence offered to prove the corpus delicti by similarity should meet the same criteria as such evidence offered to prove identity by similarity--that is, it should indicate a modus operandi.

The "pattern of conduct" approach reappeared in Anastasi v. Commonwealth, Ky., 754 S.W.2d 860 (1988), but was applied more circumspectly than in Pendleton. There the details of the charged and uncharged acts bore a peculiar similarity:

The 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. These facts establish such similarity between the charged and uncharged crimes as to show a pattern of conduct which renders evidence of the occurrence of the uncharged crimes admissible.

Id. at 862. This rationale is compatible with that of Lantrip.

Our shots have been somewhat scattered, but we believe that Lantrip is nearest the mark. While the issue of the corpus delicti is primary in these cases, identity of the perpetrator (if any) is not wholly irrelevant. It seems more accurate to say that the latter issue is assimilated into the former. If the act occurred, then the defendant almost certainly was the perpetrator. The two issues are essentially integrated. It...