Montgomery v. Commonwealth Of Ky., No. 2007-SC-000852-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtOpinion of the Court by ABRAMSON
Citation320 S.W.3d 28
PartiesDanny MONTGOMERY, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
Decision Date18 March 2010
Docket NumberNo. 2007-SC-000852-MR.

320 S.W.3d 28

Danny MONTGOMERY, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000852-MR.

Supreme Court of Kentucky.

March 18, 2010.


320 S.W.3d 29

COPYRIGHT MATERIAL OMITTED

320 S.W.3d 30

COPYRIGHT MATERIAL OMITTED

320 S.W.3d 31
Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Danny Montgomery appeals as a matter of right from a Judgment of the Trimble Circuit Court convicting him of first-degree sexual abuse, in violation of KRS 510.110, and sentencing him as a first-degree persistent felony offender (PFO) to twenty years in prison. The Commonwealth alleged that on five occasions Montgomery raped his early-adolescent stepdaughter, K.B., and that shortly prior to one of the rapes he abused her by placing his hand on her vagina. The jury acquitted Montgomery of the rape charges, but convicted him of sexual abuse. Montgomery challenges his conviction on three grounds. He maintains (1) that the rape and abuse charges should have been tried separately; (2) that the trial court erred by admitting

320 S.W.3d 32
evidence pursuant to KRE 404(b) that Montgomery had similarly abused three other young girls; and (3) that the trial court erred by excluding evidence tending to show that K.B. had knowledge which enabled her to make sexual allegations and that she had a motive to falsely accuse him. Montgomery also challenges his sentence. He contends that the trial court improperly gave the Commonwealth an opportunity to perfect its PFO proof, that crucial portions of the Commonwealth's evidence were incompetent, and that the court incorrectly instructed the jury to recommend an enhanced sentence on the PFO charge without first recommending a sentence for the underlying sexual abuse. Convinced that Montgomery has not established grounds for relief, we affirm both his conviction and his sentence.
RELEVANT FACTS

In October 2005, a Trimble County Grand Jury indicted Montgomery for allegedly having raped K.B. ten times between December 2, 2004 and August 18, 2005, when K.B. was thirteen and fourteen years old. The ten counts of the indictment were identical. In response to Montgomery's motion for a bill of particulars, the Commonwealth, in October 2006, detailed five rapes: one on December 1, 2004, a day after Montgomery, K.B., and K.B.'s mother had arranged to move to Trimble County from Johnson County, Indiana; a second in January 2005; a third in March 2005; a fourth later that spring, and a fifth during the morning of May 20, 2005, following an incident the night before when Montgomery allegedly awakened K.B. by reaching inside her pants and fondling her vagina. All of these incidents were alleged to have occurred at Montgomery's Trimble County residence. The other five counts of rape were dismissed, but the May 2005 fondling allegation gave rise in November 2006 to a separate indictment for sexual abuse. The rape and abuse charges were ultimately joined and tried together with a first-degree persistent felony offender charge in July 2007.

Trial testimony established that K.B. was born in California in May 1991. She has two older half siblings, a brother and a sister. In 2000, the family moved from California to Indiana, where K.B.'s mother soon met, commenced living with, and eventually married Montgomery. Almost as soon as Montgomery moved in, the elder sister accused him of molesting her. The accusations were not pursued, but the sister was allowed to return to California to live with her father. At some point, too, the brother left the home to live with relatives. In 2002, when K.B. was eleven, she told a friend and then a school counselor that Montgomery had “raped” her. The counselor informed K.B.'s mother, who immediately took K.B. to the emergency room to be examined. The exam revealed that K.B.'s hymen was still intact and that otherwise her genitals were completely normal. Soon thereafter K.B. told the investigating social worker that she had made up the “rape” allegation and that in fact nothing had happened.

Allegations against Montgomery arose again in November 2004, when K.B. was thirteen years old and still living in Indiana with her mother and Montgomery. The mother of one of K.B.'s classmates reported to authorities a rumor that Montgomery had molested some of K.B.'s friends and had subjected K.B. to intercourse. A police officer and a social worker promptly interviewed the girls at school. Three of K.B.'s friends reported that they had, at separate times, spent the night at K.B.'s home and that during the night they had been awakened by Montgomery reaching into their pants and touching their vaginal areas. When initially questioned,

320 S.W.3d 33
K.B., too, made allegations against Montgomery.

It was in the wake of the investigation of these allegations that Montgomery, K.B., and K.B.'s mother moved from Indiana to Trimble County. K.B. testified that she and Montgomery spent December 1, 2004 at their new trailer painting and preparing to move in. That night, she claimed, Montgomery forcibly subjected her to intercourse. She admitted, however, that the next day, when she was again interviewed by the Indiana police officer investigating the allegations against Montgomery there, she not only did not report the alleged rape but, recanting her allegations of a few days before, denied that Montgomery had abused her in Indiana.

K.B. also testified concerning the four other alleged rapes and the May 19 incident of abuse. In addition, her testimony and that of others described how, on May 20, 2005, the day of the last alleged rape, K.B.'s brother moved from his grandparents' home in Indiana to his mother's and Montgomery's Trimble County trailer. About a week after his arrival, he allegedly found a letter the then fourteen year old K.B. had written to herself but addressed to her mother, in which she described Montgomery's alleged assaults and sought her mother's protection. The brother showed the letter to his mother, and when she confronted Montgomery a melee erupted that soon involved the police and resulted in an emergency protective order barring Montgomery from the home. A few days later, however, K.B. again told one of the investigating officers that she had fabricated her allegations. K.B. was on probation for a burglary at the time, and the investigating officers testified that she claimed to have made up the allegations against Montgomery in an attempt to divert attention from herself.

Following the May altercation, Montgomery and K.B.'s mother separated and by the time of Montgomery's trial they had divorced. Once they had separated, apparently, that is where matters stood until the following August. In August 2005, however, another of K.B.'s Indiana friends, who is also Montgomery's great niece, accused K.B. of molesting her. The officer who investigated that charge was the same officer who had investigated the Indiana charges against Montgomery by the three friends who had slept overnight at K.B.'s residence. In the course of his interview with K.B., the officer again asked about those earlier accusations. This time K.B. reported that Montgomery had in fact abused her in Indiana, and she renewed her allegations of rape in Kentucky as well. Those allegations were again referred to Kentucky authorities and provided the basis for Montgomery's October 2005 indictment.

ANALYSIS
I. Evidence That Montgomery Had Similarly Abused Three Other Young Girls was Properly Admissible As to the Sexual Abuse Charge Under the Modus Operandi Exception to KRE 404(b)

The Commonwealth indicated prior to trial that it would offer the testimonies of three girls from Indiana, each of whom, on separate occasions, had been an overnight guest in the residence occupied by K.B. and Montgomery. Each girl would testify that while she was sleeping in a room with at least one other girl, Montgomery had awakened her by reaching into her pants and that as soon as she awoke he had desisted, without comment or further touching, and left the room. The sexual abuse charge in the November 2006 indictment involved virtually identical conduct. The trial court, after a hearing,

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denied Montgomery's motion in limine to exclude this evidence, finding it a “strikingly similar ... method of sexual abuse.”

Montgomery argues that this evidence was not admissible and that his abuse conviction must therefore be reversed. He correctly notes that under KRE 404(b) evidence of other crimes or bad acts is not admissible as proof of character “in order to show action in conformity therewith.” Other-crimes evidence may be admissible for other purposes, however, such as proof of motive, opportunity, intent and plan. KRE 404(b)(1). In particular, this Court has upheld the admission of evidence of prior sexual misconduct as proof of the corpus delicti in sex offense cases where the prior misconduct is sufficiently similar to the charged offense to indicate that both acts were committed by the same person. Dickerson v. Commonwealth, 174 S.W.3d 451, 467-70 (Ky.2005) (discussing the sufficient commonality necessary to establish a “signature crime”). In Clark v. Commonwealth, 223 S.W.3d 90 (Ky.2007), we recently emphasized the narrowness of this “modus operandi” exception to KRE 404(b)'s general rule of exclusion by recognizing

the fundamental principle that conduct that serves to satisfy the statutory elements of an offense will not suffice to meet the modus operandi exception. Instead, the modus operandi exception is met only if the conduct that meets the statutory elements evidences such a distinctive pattern as to rise to the level of a signature crime.

Id. at 98. The trial court's decision regarding KRE 404(b) matters is reviewed by this Court under an abuse of discretion standard, i.e., was it...

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47 practice notes
  • State v. Perry, Appellate Case No. 2017-001965
    • United States
    • United States State Supreme Court of South Carolina
    • May 6, 2020
    ...they would have been committed by another. See, e.g. , Lyle , 125 S.C. at 420–21, 118 S.E. at 808 ; Montgomery v. Commonwealth , 320 S.W.3d 28, 34 (Ky. 2010) ; 2 Wigmore on Evidence §§ 304 & n.1, 306 & n.2, 416 & n.1. Notably, this exception is only available when identity is an issue in th......
  • Goncalves v. Commonwealth, No. 2010–SC–000142–MR.
    • United States
    • Kentucky Supreme Court
    • August 29, 2013
    ...protected right of cross-examination” is “the exposure of a witness's motivation in testifying.” Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky.2010) ( citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). We review a trial court's limitation on cross-examinat......
  • Grigsby v. Commonwealth, NO. 2013-CA-002068-MR
    • United States
    • Court of Appeals of Kentucky
    • August 7, 2015
    ...false, and thus would be inadmissible under the Capshaw analysis. Notwithstanding, Grigsby argues that in Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010), the Kentucky Supreme Court effectively modified the Capshaw ruling such that "KRE 412 must be construed, as must all the rules of e......
  • Hedgepath v. Commonwealth, No. 2013–SC–00343–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 18, 2014
    ...the same victim, even if spread over a lengthy period of time, are properly joined for trial. See, e.g., Montgomery v. Commonwealth, 320 S.W.3d 28, 35 (Ky.2010) (approving joinder “of six sexual offenses against the same minor victim in the same residence over a five and one-half month peri......
  • Request a trial to view additional results
47 cases
  • State v. Perry, Appellate Case No. 2017-001965
    • United States
    • United States State Supreme Court of South Carolina
    • May 6, 2020
    ...they would have been committed by another. See, e.g. , Lyle , 125 S.C. at 420–21, 118 S.E. at 808 ; Montgomery v. Commonwealth , 320 S.W.3d 28, 34 (Ky. 2010) ; 2 Wigmore on Evidence §§ 304 & n.1, 306 & n.2, 416 & n.1. Notably, this exception is only available when identity is an issue in th......
  • Goncalves v. Commonwealth, No. 2010–SC–000142–MR.
    • United States
    • Kentucky Supreme Court
    • August 29, 2013
    ...protected right of cross-examination” is “the exposure of a witness's motivation in testifying.” Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky.2010) ( citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). We review a trial court's limitation on cross-examinat......
  • Grigsby v. Commonwealth, NO. 2013-CA-002068-MR
    • United States
    • Court of Appeals of Kentucky
    • August 7, 2015
    ...false, and thus would be inadmissible under the Capshaw analysis. Notwithstanding, Grigsby argues that in Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010), the Kentucky Supreme Court effectively modified the Capshaw ruling such that "KRE 412 must be construed, as must all the rules of e......
  • Hedgepath v. Commonwealth, No. 2013–SC–00343–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 18, 2014
    ...the same victim, even if spread over a lengthy period of time, are properly joined for trial. See, e.g., Montgomery v. Commonwealth, 320 S.W.3d 28, 35 (Ky.2010) (approving joinder “of six sexual offenses against the same minor victim in the same residence over a five and one-half month peri......
  • Request a trial to view additional results

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