Clark v. Commonwealth, No. 2006-SC-000379-MR (Ky. 10/23/2008)
| Decision Date | 23 October 2008 |
| Docket Number | No. 2006-SC-000379-MR.,2006-SC-000379-MR. |
| Parties | Billy R. CLARK, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court (Kentucky) |
On Appeal from Butler Circuit Court, Honorable Ronnie C. Dortch, Judge, Nos. 03-CR-00100 and 05-CR-00054.
Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General, Clint Evans Watson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
Billy Clark appeals as a matter of right from an April 20, 2006 Butler County Judgment convicting him of three counts of rape in the first degree, one count of sodomy in the first degree, and one count of sexual abuse in the first degree. The victim of the alleged rape and sexual abuse in this case was Clark's minor daughter, L.C. Following the guilty verdict, the trial court sentenced Clark to a total of twenty years in prison. On appeal, Clark contends that the trial court erred by (1) permitting the Commonwealth to introduce evidence of Clark's prior acts of sexual abuse against L.C. that occurred in Ohio County, Kentucky; (2) failing to instruct the jury on the charge of sexual abuse in the second-degree as a lesser-included offense; (3) allowing the Commonwealth to play the audio recording of Clark's interview with the police following his arrest, which included statements from Police Officer Todd Combs indicating that he believed L.C. was telling the truth when she accused Clark of sexual abuse; (4) permitting L.C.'s mother, who was also to be called as a witness, to remain in the courtroom during L.C.'s testimony; and (5) refusing to grant a continuance so that Clark could undergo a second mental competency evaluation. Although we do not agree with all of Clark's claims of error, we do agree that the trial court committed reversible error when it allowed Officer Combs's statements regarding L.C.'s truthfulness to be introduced and when it failed to give a second-degree sexual abuse instruction. Thus, Clark's April 20, 2006 Conviction and Sentence are reversed and his case remanded for a new trial. Because several of Clark's other claims of error may arise on retrial, we will address them in this opinion. However, Clark's fifth argument that the trial court should have granted a continuance is now moot and will not be discussed.
RELEVANT FACTS
L.C. testified at trial that her father, Billy Clark, first began sexually abusing her in 1998, when she was nine years old. At that time, L.C.'s parents were separated and Clark lived in Ohio County, Kentucky. L.C. testified that the abuse occurred during her weekend visits to her fathers house in Ohio County. The next year, when L.C. was approximately ten years old, Clark moved to Butler County and resided in a camper on L.C.'s grandfathers property. L.C. stated that the abuse continued after Clark's move, revealing that Clark had sex with her both in his camper and in a motel room at the Green River Lodge. Subsequently, in June 2002, L.C.'s mother brought L.C. to the Kentucky Department of Protection and Permanency (KDPP) after L.C. revealed the sexual abuse to her. Amy Casey, an investigative worker at KDPP, testified at trial that after interviewing L.C., she contacted Kentucky State Police Officer Todd Combs in order to initiate a joint investigation into L.C.'s allegations.
As a result of the investigation, the Butler County grand jury returned an indictment on August 15, 2003, charging Clark with sexual abuse in the first degree. In response to the indictment, Officer Combs arrested Clark and interviewed him regarding the charges. In this interview, a tape of which was played during Clark's trial., Clark denied the allegations of abuse, but acknowledged that he checked L.C.'s "privates" once because she complained that she was hurting. Clark also revealed that on one occasion when he was having sex with his girlfriend, he believed he could have been having sex with L.C. by mistake, even though his girlfriend reassured him that this was not the case. Despite Clark's claim that the charges were false, Officer Combs told Clark that he could tell who was telling the truth and that he believed L.C. when she accused Clark of sexual abuse.
According to Officer Combs's trial testimony, two years after his initial interview with L.C. and Clark, L.C. contacted him again because she wanted to talk about some things involving Clark that she had not told Officer Combs before and that she thought he needed to know. On February 25, 2005, L.C. met with Officer Combs and told him about several other instances when Clark had raped and sexually abused her in Butler County. Due to this new information, on March 9, 2005, Clark was charged in a separate indictment with four counts of first-degree rape, one count of first-degree sodomy, and five counts of incest. Although the incest charges were eventually dismissed, the sexual abuse, rape, and sodomy indictments were consolidated in April 2005, and later tried in Butler Circuit Court in January 2006. The jury ultimately found Clark guilty of three counts of rape in the first degree, sodomy in the first degree, and sexual abuse in the first degree. Pursuant to the jury's recommendation, the trial court sentenced Clark on April 18, 2006, to fifteen years on each rape and sodomy count, which were to run concurrently, and to five years on the sexual abuse count, which was to run consecutively, for a total of twenty years in prison. This appeal followed.
ANALYSIS
l. The Trial Court Did Not Err When It Allowed The Commonwealth To Introduce Evidence of Clark's Prior Abuse of L.C. That Occurred In Ohio County.
At trial, L.C. testified that she was visiting her father in Ohio County when he first sexually abused her. She stated that during one of these visits, she woke up and he was on top of her, touching her "private" with his hand and his "private." The only other time L.C. mentioned Ohio County in her direct-examination was when she began describing what happened after her father moved to Butler County. L.C. testified that the first time the abuse occurred in Butler County, she was staying with her father in his camper. L.C. stated that her father came over to her, took off her pants, and then "did the same thing he did in Ohio County." L.C. then went on to describe what occurred without any reference to Ohio County. Although L.C. made three more brief references to the fact that the abuse began in Ohio County, these were in direct response to the questions asked by Clark's counsel on cross-examination. Clark's counsel requested L.C. to describe where Clark lived in Ohio County and if anyone lived with him. Clark's counsel then asked L.C. if her Ohio County visit was "the first time when something bad happened," to which L.C. replied, "yes." The only other reference made to the abuse in Ohio County came when Clark's counsel asked L.C. if she had told her mother about what happened in Ohio County. L.C. responded that she did not initially tell her mother because she did not want her father to get into trouble.
Clark objected in a pre-trial motion and at trial to any mention of the alleged abuse that occurred in Ohio County, arguing that such references were irrelevant to the allegations of abuse in Butler County, were highly prejudicial to Clark and would impair his ability to testify only in the Butler County trial. The trial court ruled that the Commonwealth could mention the abuse in Ohio County, but only briefly and only to show where Clark's abuse of L.C. began. On appeal, Clark now argues that the trial court erred by admitting evidence of sexual abuse in Ohio County because it was irrelevant to his current charges and violated the prohibition against prior bad act evidence as set forth in KRE 404(b). Even though we are reversing Clark's case on other grounds, we nonetheless will address the merits of this argument because it may arise on retrial.
Although evidence of a defendant's prior bad acts is inadmissible to prove that the defendant acted in conformity with his bad character, such evidence can be introduced if it is "offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident..." and if its probative value outweighs its prejudicial effect on the defendant. KRE 404(b); KRE 403. A trial court's decision to admit this evidence is reviewed on appeal according to the abuse of discretion standard, which means the trial court's ruling will not be disturbed unless it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002), this Court held that the victim's testimony that she had been sexually abused by the defendant on more than one occasion was properly admitted "to prove intent, plan, or absence of mistake or accident." Furthermore, we stated that "evidence of similar acts perpetrated against the same victim are almost always admissible for those reasons." Id. In this case, the evidence of Clark's sexual abuse of L.C. in Ohio County was minimal and introduced for the limited purpose of establishing when and where the abuse began. As in Noel, supra, it was relevant to show Clark's opportunity, intent, preparation and plan to rape and sexually assault L.C. Clark's assertion that this evidence dominated the trial and amounted to "overkill" is simply untrue. As noted above, L.C. briefly made reference to the abuse in Ohio County twice during the direct examination and three times during the cross-examination. It was not the focus of her testimony and its probative value outweighed any prejudice suffered by Clark. Thus, it was not arbitrary or unreasonable for the trial court to allow L.C. to testify that the sexual abuse...
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