Rearick v. Com.

• Citation: 858 S.W.2d 185
• Decision Date: 27 May 1993
• Docket Number: No. 92-SC-230-MR,92-SC-230-MR
• Parties: Theodore REARICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 185

858 S.W.2d 185

Theodore REARICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 92-SC-230-MR.

Supreme Court of Kentucky.

May 27, 1993.

Franklin P. Jewell, Louisville, for appellant.

Chris Gorman, Atty. Gen., Todd D. Ferguson, Asst. Atty. Gen., Criminal Appellate Div., Capitol Building, Frankfort, for appellee.

OPINION OF THE COURT

Appellant was convicted of three counts of First Degree Sodomy, one count of Third Degree Sodomy and two counts of First Degree Sexual Abuse. He appeals as a matter of right from the judgment of conviction and thirty year sentence. The judgment is reversed and the case remanded for a new trial in accordance with this opinion.

The charges of which appellant was convicted were consolidated for trial from three separate indictments, each of which was returned on a different date and involved a different juvenile victim. The first indictment consisted of one count of sexual abuse and one count of attempted sexual abuse which allegedly occurred between April and June of 1983. That victim, hereinafter C.H., was the daughter of a woman with whom appellant had lived for some time. Appellant was accused of putting C.H.'s hand in his pants and making her touch his penis, and on another occasion exposing himself to her and taking her clothes off. C.H. also testified that, while in Ohio appellant once showed her dirty magazines and touched her vagina.

The second indictment involved crimes against appellant's biological child, hereinafter referred to as E.B. This was the only indictment involving a male victim and it consisted of four counts of first degree sodomy, and single counts of third degree sodomy and first degree sexual abuse. It was also the only indictment which alleged anything beyond an improper touching. E.B., who had been sexually abused by a prior stepfather, described multiple acts of sodomy wherein appellant had anal intercourse with him. These acts were alleged to have occurred at various times and places between May of 1982 and May of 1990.

The third indictment consisted of four counts of first degree sexual abuse against K.M., a friend of appellant's stepdaughter. It was alleged that appellant once exposed himself to K.M. "during a game," and that he touched her breast, bottom or private areas, always while she was clothed, approximately 40 to 50 times during a three to four week period. These events were alleged to have occurred at appellant's home, and K.M. estimated her age at the time to have been between six and eight years old.

All of the victims were seventeen years of age when they testified at trial in February of 1992, and their testimony constituted the crux of the Commonwealth's case against appellant. At the conclusion of the evidence, the trial court directed verdicts of acquittal on one count of first degree sodomy against E.B., one count of first degree sexual abuse against E.B., and three counts of first degree sexual abuse against K.M. The jury acquitted appellant of the attempt charge against C.H. and convicted him of the remaining six counts. Of the convictions, one arose out of the first indictment, four from the second indictment, and one from the third.

For his first allegation of error, appellant claims he was unduly prejudiced by the trial court's consolidation of the indictments into a single trial. Pursuant to RCr 9.12, a court may order two or more indictments, informations, complaints or uniform citations to be tried together if the offenses ... could have been joined in a single indictment, information complaint or uniform citation. RCr 6.18 states that such joinder is appropriate if the subject offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan. These rules serve as the reverse of RCr 9.16, which directs a court to order separate trials in the event that joinder results in prejudice to one of the parties.

We start with the general proposition that a trial court has broad discretion with respect to joinder, and will not be overturned absent a showing of prejudice and clear abuse of discretion. Cannon v. Commonwealth, Ky., 777 S.W.2d 591 (1989). A significant factor in identifying such prejudice is the extent to which evidence of one offense would be admissible in a trial of the other offense. Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977). Relying to a great extent on Anastasi v. Commonwealth, Ky., 754 S.W.2d 860 (1988), the trial court herein found the crimes charged in the three indictments sufficiently indicative of a common scheme or plan to be admissible in the event of separate trials. As such, it determined that joinder would have been appropriate and granted consolidation of the indictments for trial.

We recently revisited the admissibility of common scheme or plan evidence in Billings v. Commonwealth, Ky., 843 S.W.2d 890 (1992), and Gray v. Commonwealth, Ky., 843 S.W.2d 895 (1992). In Billings, we noted that unless a collateral act has some direct relationship to the charge being tried, its admission necessarily depends on the view that the defendant's character and predisposition are probative of his guilt. Such a basis for admission of evidence was held improper in Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985), which struck down "lustful inclination" evidence. Noting that multiple acts involving sexual crimes are not necessarily similar, we held in Billings that collateral bad acts evidence offered to prove corpus delicti should satisfy the same criteria as such evidence offered to indicate modus operandi. That is, evidence of other acts of sexual deviance offered to prove the existence of a common scheme or plan must be so similar to the crime on trial as to constitute a so-called signature crime. Billings at 893.

In Gray, rendered on the same day as Billings, the defendant was charged with sexually abusing his eight-year old niece. The prosecution put on the testimony of three other nieces who had allegedly been molested by the defendant. The first related a single incident years earlier in which she felt someone touch her between her legs while asleep. She testified that she awoke to find the defendant lying next to her. The second told how defendant had touched her between her legs and on her rear on several occasions over a period of time some years prior to the charged offense. The third related similar improper touchings several years prior to the charged offense.

Holding that the collateral acts failed to evince such a striking similarity as to be indicative of a modus operandi, we reversed the conviction for the reasons expressed in Billings. Furthermore, we noted that although some of the collateral acts bore a general resemblance to the offense being tried, any probative worth which such resemblances might have endued was diminished by the...