                IMPORTANT NOTICE
           NOT TO BE PUBLISHED OPINION

   THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
   PURSUANT TO THE RULES OF CIVIL PROCEDURE
   PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
   THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
   CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
   CASE IN ANY COURT OF THIS STATE; HOWEVER,
   UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
   RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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\ BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
    DECISION IN THE FILED DOCUMENT AND A COPY OF THE
                                             .




    ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
    DOCUMENT TO THE COURT AND ALL PARTIES TO THE
    ACTION.
                                                  RENDERED: OCTOBER 29, 2015
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                                                               -




                                                                         wAct-%5 5...NAM2-voum-? -(
MICHAEL JOHN ROBERT                                                       APPELLANT


                 ON APPEAL FROM DAVIESS CIRCUIT COURT
V               HONORABLE JAMES A. WETHINGTON, II, JUDGE
                            NO. 13-CR-00235


COMMONWEALTH OF KENTUCKY                                                   APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                          REVERSING AND REMANDING

      A Daviess Circuit Court jury found Appellant, Michael J. Robert, guilty of

first-degree sexual abuse, second-degree rape, third-degree rape, and two

counts of third-degree sodomy. The jury recommended that Appellant be

sentenced to thirty years' imprisonment, but, pursuant to KRS 532.080(6)(b),

the trial court imposed the maximum sentence of twenty years' imprisonment.

Appellant now appeals as a matter of right, Ky. Const. § 110(2)(b), and raises

the following allegations of error: (1) the trial court erred in failing to excuse a

biased juror and/or declare a mistrial in violation of Appellant's right to a fair

and impartial jury, (2) the trial court allowed improper KRE 404(b) evidence to

be admitted at trial in violation of Appellant's rights under the Sixth and

Fourteenth Amendments to the U.S. Constitution, and (3) the trial court denied

Appellant due process of the law under the Fourteenth Amendment to the U.S.
Constitution by the introduction of two photographs of the victim taken at the

time the alleged crimes occurred.

                                    I. BACKGROUND

          More than two decades ago, Appellant lived just one street over from a

young girl named Jane.' Jane was admittedly unhappy with her home life and,

at age eleven, she began regularly visiting the home of Appellant and his then-

wife, Beth. Jane liked to visit their home to play with their dogs and soon

developed a relationship with both Appellant and Beth.

       Approximately twenty years after the alleged acts of abuse began, Jane

contacted the police and reported that Appellant had molested her for

approximately five years, beginning when she was eleven years old. As a result

of the subsequent police investigation, Appellant was charged with and indicted

for one count of first-degree sexual abuse, two counts of second-degree rape,

and two counts of third-degree sodomy.

      Jane alleged that Appellant sexually touched her hundreds of times while

she visited his home during that five-year period. However, Appellant denied

that anything inappropriate ever occurred between him and Jane. Beth

testified that she was almost always around when Jane would visit and that

she never saw any inappropriate touching or contact between Jane and

Appellant during the time period in question. Appellant further stated that

Jane had attempted to contact him in an effort to let their children play



      1 The name of the alleged victim has been changed to Jane for the purpose of
this opinion in an attempt to protect her privacy.

                                          2
 together, and that she only made her allegations against him when he did not

 respond to her attempts at contact; Appellant claims this is the reason Jane

went to the police with false allegations.

       Appellant was ultimately convicted of four of the five crimes he was

charged with and sentenced to the maximum of twenty years' imprisonment.

Further facts will be developed as necessary for our analysis.

                                     II. ANALYSIS

    A. Juror Qualification

       Appellant's first argument is that the trial court erred in failing to strike

a biased juror or subsequently declare a mistrial when that juror sat on the

panel. Because we agree that this was a biased juror, we hold the trial court

violated Appellant's right to an impartial jury. Therefore, we reverse and

remand to the trial court for a new trial.

       During voir dire, the trial court became aware that one of the prospective

jurors, Juror M, had a current back injury she was struggling with. Based on

the trial judge's willingness to accommodate Juror M by allowing her to stand

when necessary, she stated that she believed she could serve if selected. Both

Juror M and another juror, Juror B, were selected to serve on the jury in

Appellant's trial.

      The jury was sworn, opening statements were given by each side, and the

trial judge took a recess for lunch. It was during this recess that Juror B

spotted a spectator in the courtroom whom she recognized from her church.

According to Jane's sister, upon greeting her, Juror B asked her, "Oh my gosh,

                                          3
is that [(the victim)] your sister?" To which the spectator replied by nodding her

head and saying, "Yes." Juror B immediately exclaimed, "Oh my God, I have got

to get off of this case!" Subsequently, Juror B approached the bailiff stating

that she needed to speak with the judge because she had a conflict.

       In chambers, the prosecutor relayed to the trial judge the details of this

conversation between Juror B and Jane's sister. Juror B was brought back into

chambers where she spoke with the judge in front of the attorneys. Juror B

stated that as she was leaving the courtroom she recognized this spectator

from her church and that she just wanted to make the judge aware she attends

church with Jane's sister and parents and does know this family. When asked

by the judge if this would make a difference in her ability to serve as a juror in

this case, Juror B replied that it would not as she had sworn to be impartial.

When the judge prompted Juror B for more information regarding this

conversation, Juror B replied that she and Jane's sister had merely made eye

contact and said "hi" because they recognized each other.

      After Juror B was dismissed from the trial judge's chambers, the

prosecutor told the trial judge that Juror B gave a markedly different account

of this incident than did Jane's sister. At this time, the defense attorney moved

to strike Juror B. The trial judge asked the prosecutor for a response and he

agreed that either Juror B should be stricken or all parties should agree to

keep her and agree that she would be the alternate. Defense counsel agreed

and the trial judge then stated "let's agree that she's going to be stricken . . . as

the alternate."

                                          4
       The trial proceeded and, on Friday morning, the prosecution rested its

case. The trial judge called for a recess and the jurors filed out into the

hallway. While in the hallway, Juror M (the juror with a prior back injury)

slipped and fell, badly injuring herself. She was immediately transported to the

hospital. In hopes that she would be able to return after the weekend, the court

called a recess until Monday morning. Unfortunately, Juror M was unable to

return for jury duty. The trial court chose to proceed with the trial, moving

Juror B from the alternate spot and onto the panel. The defense moved for a

mistrial on the ground that Juror B was a biased juror and her service on this

jury would violate Appellant's constitutional right to an impartial jury. The trial

judge denied the motion for a mistrial and Juror B sat in judgment of

Appellant.

      The Sixth Amendment to the United States Constitution and Section 11

of the Kentucky Constitution guarantee a criminal defendant the right to trial

by an impartial jury. The Kentucky Rules of Criminal Procedure provide that

"[w]hen there is reasonable ground to believe that a prospective juror cannot

render a fair and impartial verdict on the evidence, that juror shall be excused

as not qualified." RCr 9.36. Challenges for impartiality must be made before

the jury is sworn, but a juror may be challenged after the jury is impaneled if

the court finds good cause. RCr 9.36(1), (3).

      "A trial court's decision whether to remove a juror from a panel that has

already been seated is reviewed for an abuse of discretion." Lester v.

Commonwealth, 132 S.W. 3d 857 (Ky. 2004). A trial court abuses its discretion
when this decision is arbitrary, unreasonable, unfair, or unsupported by sound

legal principles. Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W., 575,

581 (Ky. 2000). In making this determination, the trial court is charged with

weighing "the probability of bias or prejudice based on the entirety of a juror's

responses and demeanor." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.

2007). This includes ascertaining the credibility of the prospective juror's

answers. Id. at 338. "And, 'notwithstanding a prospective juror's responses .. .

whatever his or her protestations of lack of bias, the juror's close relationship,

be it familial, financial or situational, with any of the parties, counsel, victims

or witnesses, is sufficient to require the court to sustain a challenge for cause

and excuse the juror."' Jackson v. Commonwealth, 392 S.W.3d 907 (Ky. 2013)

(citing Brown v. Commonwealth, 313 S.W.3d 577, 596 (Ky. 2010) (quoting

Marsch v. Commonwealth, 743 S.W.2d 830, 833 (Ky. 1988)).

      Here, the juror's statements regarding this conversation were at odds

with Jane's sister's recollection of the incident. The juror was untruthful when

explaining the details of the conversation and gave an entirely different account

to the judge than her initial reaction (as recounted by Jane's sister) when

realizing she knew this family. The trial judge was aware of all these facts at

the time he questioned Juror B in chambers and at the time he made his ruling

on both the motion to strike and motion for mistrial. "[A] juror may indicate

that he or she can be impartial, but they may demonstrate a state of mind to

disprove that statement by subsequent comments or demeanor so

substantially at odds that it is obvious the [trial court] has abused [its]

                                          6
discretion in deciding the juror is unbiased; in contrast, an individual may

flatly and blatantly demonstrate his inability to be impartial and fair, and no

magic question can rehabilitate his impartial state of mind." McDaniel v.

Commonwealth, 341 S.W.3d 89 (Ky. 2011) (citing Shane v. Commonwealth, 243

S.W.3d 336 (Ky. 2007)). In this instance, the juror's initial reaction indicated

that she could not be fair and needed to be released from her duty on this jury.

Her subsequent comments and demeanor toward the judge do not rectify this

showing of apparent bias. There can be no magic questions to rehabilitate a

juror and this juror's apparently untruthful response to the judge's questions

regarding the conversation she had with Jane's sister certainly does not serve

to rehabilitate her as a juror.

      At the very least, Juror's B's remarkably different response about her

ability to be fair and impartial and the account of her conversation with Jane's

sister were enough to cast serious doubt on her qualifications as a juror in this

case. This Court has long held, "[a]ny doubts about the ability of a juror to be

fair and impartial should be construed in favor of a defendant." Paulley v.

Commonwealth, 323 S.W.3d 715, 721 (Ky. 2010). The trial judge's decision

(and the parties' agreement) to designate this juror as the alternate is evidence

that there was doubt surrounding the qualifications of this juror.

      Criminal Rule 9.32 provides that a juror may be designated as the

alternate either by agreement between the parties or by random selection.

However, this juror was not removed as an alternate under either of the

provided methods in Criminal Rule 9.32. In the case sub judice the trial judge

                                        7
effectively determined the juror would be excused by designation as the

alternate. This is the very situation contemplated by this Court in Nunley v.

Commonwealth, 393 S.W.3d 9 (Ky. 2013). In Nunley, this Court stated:

      The rule (Criminal Rule 9.32), however, recognizes that it
       sometimes "become[s] necessary to excuse a juror" other than by
      agreement or random selection. Though the rule is not explicit,
      this must refer to excusing a juror for cause during the trial once it
      becomes evident that the juror is not qualified to sit. Though this
      practice is often referred to as designating the juror as the
      alternate, that is not what it is; otherwise, such a juror could be
      subject to recall if another member of the jury became unable to
      sit. See RCr 9.32(2). Instead, what technically happens when the
      juror is disqualified, even in the middle of the trial, is that he is
      struck for cause. This is what the trial judge did in this case.

Id. at 14.

      Thus, when the doubt surrounding the qualification of this juror caused

the trial judge to designate this juror as the alternate, she was effectively

stricken for cause. Therefore, when Juror M later became disqualified by

physical injury, it was error for the trial court to cause Juror B to sit in

judgment of Appellant as a previously disqualified juror. For this reason, we

reverse the trial court and remand for a new trial. Having already found

grounds to reverse Appellant's conviction and remand for a new trial, we will

only look at Appellant's remaining arguments insofar as they are likely to recur

on remand.

   B. KRE 404(b) Evidence

      Next, Appellant argues the trial court committed reversible error when it

admitted KRE 404(b) evidence of other crimes, wrongs, or acts. Pursuant to

KRE 404(c), the Commonwealth notified Appellant of its intention to introduce

                                          8
 evidence at trial that Appellant had engaged in sexual acts with Jane on

 numerous occasions—more instances than those for which Appellant had been

charged. This evidence included additional acts of sexual touching during the

time span covered by the indictment and, also, at least one incident after that

time period. Because we believe this issue is likely to recur on remand, we

reach the merits.

       Kentucky Rules of Evidence 404 deals with character evidence and

evidence of other crimes. More specifically, KRE 404(b) provides:

      (b) Other crimes, wrongs, or acts. Evidence of other crimes,
      wrongs, or acts is not admissible to prove the character of a person
      in order to show action in conformity therewith. It may, however,
      be admissible:

             (1) If offered for some other purpose, such as proof of
             motive, opportunity, intent, preparation, plan,
             knowledge, identity, or absence of mistake or accident;
             or

            (2) If 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.

In Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994), this Court stated

"trial courts must apply the rule cautiously, with an eye towards eliminating

evidence which is relevant only as proof of an accused's propensity to commit a

certain type of crime." However, this Court has ruled on numerous occasions

that "similar acts perpetrated against the same victim are almost always

admissible" to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Price v. Commonwealth, 31 S.W.3d

885, 888 n. 4 (2000).
                                       9
      Jane testified that Appellant first groped her breasts in 1994—an act

charged under Appellant's indictment. She also testified that Appellant had

done so several other times (these times uncharged) leading up to the first time

he raped her in 1997. In all, she said Appellant touched her sexually

"hundreds" of times. She testified that Appellant placed his mouth on her

vagina around ten times and placed his penis inside her mouth no more than

three times. The touching continued until Jane had a boyfriend at age 16.

      Just as in the case at bar, in Noel v. Commonwealth, 76 S.W.3d 923, 931

(Ky. 2002), the victim testified that the appellant "had sexually abused her

`more than one time"' and the appellant in that case argued that this amounted

to a violation of KRE 404(b). However, this Court held that "this testimony falls

within the exceptions for evidence offered to prove intent, plan, or absence of

mistake or accident." Id. We reiterated that "evidence of similar acts

perpetrated against the same victim [is] almost always admissible for those

reasons." Citing Price, 31 S.W.3d at 888 n. 4.

      In yet another similar case in which the victim was permitted to testify

regarding uncharged acts of sexual contact, Harp v. Commonwealth, 266

S.W.3d 813, 822-23 (Ky. 2008), we held:

             The Commonwealth bore the burden of proving each element
      of each charge against [the appellant] beyond a reasonable doubt.
      Thus, the Commonwealth was required to offer proof of [the
      appellant's] intent. Accordingly, the evidence of other sexual
      contact between [the appellant and the victim] . . . was both highly
      relevant and probative. Additionally, the evidence [the appellant]
      challenges on appeal also was admissible as proof of at least
      identity and absence of mistake or accident.



                                       10
               As we have definitively held, "evidence of similar acts
       perpetrated against the same victim are almost always admissible .
       . . ." [Price, 31 S.W.3d at 888, n.4.] And we do not perceive that
       any prejudice suffered by [the appellant] was sufficient to overcome
       the general rule regarding admissibility of similar acts perpetrated
       against the same victim. Thus, we find no error in the trial court's
       decision to admit the KRE 404(b) evidence in question.

       Here, Appellant denied any of the allegations. Therefore, his intent,

motive, plan, absence of mistake, and course of conduct were all squarely at

issue, just as in the cases cited above. The Commonwealth's theory of the case

was that Appellant was obsessed with Jane and started abusing her when she

was eleven years old. According to Jane, Appellant told her he was the only

person who would love her and that he wanted the two to live together when

she turned eighteen. The ongoing sexual contact, including testimony that

such contact persisted even after she reached the age of consent, was both

relevant and probative in this case, just as similar evidence was relevant and

probative in Harp. The trial court did not abuse its discretion here in allowing

the evidence under KRE 404(b), and assuming the Commonwealth gives proper

notice pursuant to KRE 404(c) on retrial, such evidence should be allowed in

Appellant's new trial for the limited purposes of proving Appellant's "motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident" or "if [it is] 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." KRE 404(b).




                                         11
    C. Photographs of the Victim

       Lastly, Appellant argues that he was denied due process of the law based

on the introduction of photographs of Jane at the time of the alleged crimes.

Two photographs of Jane were introduced; one depicts her at age eleven and

the other at age fourteen. Again, we reach the merits of this argument due to

its likelihood to recur on remand.

      "In order to be admissible, a photograph must be relevant, and its

prejudicial effect must not substantially outweigh its probative value." Chesnut

v. Commonwealth, 250 S.W.3d 288, 302 (Ky. 2008). We review a trial court's

evidentiary rulings for an abuse of discretion. Goodyear Tire & Rubber Co. v.

Thompson, 11 S.W.3d 575, 581 (Ky. 2000). "The test for abuse of discretion is

whether the trial judge's decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles." Id. (citing Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999)).

      The photographs of Jane are relevant due to the fact that at the time of

the first alleged instance of sexual abuse, Jane was eleven years old and at the

time of trial Jane was approximately thirty years old. Just as one is entitled to

use photographs of a deceased victim to show him or her as a living person, an

alleged victim of sexual abuse may use photographs of himself or herself at the

time of the alleged incident to provide an accurate depiction at the relevant age.

Rogers v. Commonwealth, 60 S.W.3d 555, 560 (Ky. 2001). Often, sexual crimes

are not reported or prosecuted until later in time, when the victim's appearance




                                        12
may have markedly changed since the time of the alleged crime. Thus, these

photographs were relevant for that purpose.

      Furthermore, the photographs of Jane were not unduly prejudicial.

Unlike the objectionable photographs shown in Hughes v. Commonwealth, 445

S.W.3d 556 (Ky. 2014)—where the jury was shown pictures of the victim just

after childbirth, in a hospital bed—the pictures shown here did not portray the

victim in a light which would evoke undue sympathy or mislead the jury in any

way. Appellant does not contend that Jane looks like anything other than a

normal eleven-year-old and fourteen-year-old girl in these photographs. Nor

does Appellant contend that the actions portrayed in these photographs would

evoke undue prejudice. Thus, Appellant contends that he is unduly prejudiced

by publication to the jury of photographs which he admits accurately portray

his alleged victim in a fair light at the time of the alleged incidents. While

Appellant may indeed be prejudiced by these photographs, their accuracy and

fairness prevent this prejudice from being undue. As a result, we hold that

Appellant was not denied due process of law based on the admission of the two

subject photographs.

                                  III. CONCLUSION

      For the foregoing reasons, we reverse Appellant's convictions and

corresponding sentences and remand for a new trial in accordance with this

opinion.




                                         13
          All sitting. Minton, C.J., Abramson, Barber, Cunningham, and Keller,

JJ., concur. Noble, J., concurs in result only by separate opinion in which

Venters, J., joins.

          NOBLE, J., CONCURRING IN RESULT: While I agree with the majority's

resolution of the juror issue and its result in this case, I write separately to

respectfully express my disagreement with the majority's perpetuation of what

has seemingly become a hard-and-fast rule that "evidence of similar [sex] acts

perpetrated against the same victim are [sic] almost always admissible" to

prove intent, plan, or absence of mistake or accident, or some "other purpose"

under KRE 404(b)(1). Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002). It

is clear that our case law has effectively abandoned the requirement that other-

bad-acts evidence be offered for some purpose other than showing the

defendant's criminal disposition simply because the evidence offered is of other

sexual acts involving the same victim, and I disagree with rubberstamping this

judicial carve-out of KRE 404(b)'s prohibition against such evidence.

       Unlike their federal counterparts, 2 the Kentucky Rules of Evidence

contain no exception to KRE 404(b) for evidence of other sex acts. Yet,

particularly since it made its conclusory pronouncement in Noel, the tendency

of this Court has been to treat the Rules of Evidence as having just such an

exception, at least in cases of other-sex-crimes evidence involving the same




      2 See Fed. R. Evid. 413 (authorizing use of other sexual assaults in prosecution
for sexual assault), Fed. R. Evid. 414 (authorizing use of other child molestations in
prosecution for child molestation).

                                          14
victim. See, e.g., Lopez v. Commonwealth, 459 S.W.3d 867, 875 (Ky. 2015)

(holding testimony about prior sexual conduct between defendant and victim

admissible under KRE 404(b) (1) simply because it "f[ell] squarely within the

parameters set forth in Noe); Harp v. Commonwealth, 266 S.W.3d 813, 822-

23 (Ky. 2008) (holding, based on the Court's "definitive[]" holding in Noel, that

"any prejudice suffered by [the defendant] was [in]sufficient to overcome the

general rule regarding admissibility of similar acts perpetrated against the

same victim").

      While I admit my own culpability in silently joining the summary

disposition of these issues in cases such as Lopez and Hart, I now believe it is

time for this Court to right the ship. We must buck this trend and reassert the

exclusionary thrust of Rule 404(b)'s prohibition against admitting propensity

evidence.

      In this case, Robert was charged with only five discrete crimes: first-

degree sexual abuse for the first time he illegally touched Jane in 1994,

second-degree (or third-degree) rape for having sexual intercourse with Jane on

a jet ski in 1997 (or 1998), second-degree (or third-degree) rape for having

sexual intercourse with Jane on a waterbed in 1997 (or 1998), third-degree

sodomy for having deviate sexual intercourse with Jane (her mouth, his penis)

when she was less than sixteen years old, and third-degree sodomy for having

deviate sexual intercourse with Jane (his mouth, her vagina) when she was less

than sixteen years old. But, in addition to the charged offenses, the trial court

allowed evidence of additional uncharged sexual acts involving Jane to also be

                                        15
 admitted. This included testimony of illegal touching between Robert and Jane

"hundreds of times" following the first (charged) touching; that Jane had

performed oral sex on Robert one or two other times before she turned sixteen;

that Robert had performed oral sex on Jane around nine other times before she

turned sixteen; that Robert had taken Jane driving on country roads when she

was sixteen and had touched her all over and under her clothes, including her

vagina, while she was driving; and that when Jane visited Robert at his

apartment a few years after the time period of the indictment, he pushed her

onto his couch and began touching her but stopped when she told him she was

pregnant by another man.

       In overruling Robert's pretrial objection, the trial court summarily found

that this evidence "is relevant and is offered to show proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident and is so inextricably intertwined with other evidence

essential to the case that separation of the two can not [sic] be accomplished

without serious adverse effect on the Commonwealth." Therein lies the

problem. Because our case law permits such perfunctory treatment of

KRE 404(b) evidence in sex cases, trial courts are emboldened to admit pure

propensity evidence of other sexual acts by the accused without performing the

analysis required for all other other-bad-acts evidence—that is, whether it

actually is being offered for some other permissible, relevant purpose and

whether its probative value is nevertheless outweighed by its prejudicial effect,

Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky. 1994). Not only does the


                                        16
majority sign off on the trial court having done so in this case, but it

prospectively directs that the same be done on remand. Ante at                 ("[S]uch

evidence should be allowed in Appellant's new trial for the limited purposes of

proving Appellant's 'motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident,' or 'if [it is] 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."' (quoting KRE 404(b))).

      The primary mistake, one that has been repeated time and again in our

more recent cases, is it fails to identify how it is, exactly, that the uncharged-

crimes evidence actually serves to prove any of the "limited purposes" it lists

from KRE 404(b)(1), or even whether those other uses were even relevant in

this case. It is no answer to merely list examples of such other purposes

without more. Indeed, this prevalent practice renders the prohibition against

propensity evidence largely illusory in sex-abuse cases.

      Here, as in most, if not all, other cases that have mechanically applied

the Noel "rule," the majority signs off on the purported use of the uncharged-

crimes evidence to prove "intent." But how do the other alleged sexual acts by

Robert prove that he intended to commit the charged acts? Perhaps more

importantly, why was it necessary, when he denied committing the crimes at

all, that the Commonwealth affirmatively prove that he intended to commit the

acts he is charged with committing? He either did them or he did not.




                                          17
       Robert's intent was wholly irrelevant at trial. Intent is not an element of

 statutory rape and similar sexual-assault offenses where the victim is underage

and that age is the basis for the lack of consent. Davis v. Commonwealth, 561

S.W.2d 91, 94 (Ky. 1978). Of course, the law requires that the defendant have

acted voluntarily. KRS 501.030(1). Thus, Robert could not have been convicted

of the first sodomy charge (her mouth, his penis) if he had actually been asleep

when Jane performed oral sex on him. Thus, even though he had participated

in an act that would ordinarily give rise to absolute liability, he would not be

guilty of a crime because he did not act voluntarily. But here, none of the

allegations in any way placed Robert's voluntariness in dispute. While the

burden is on the prosecution to prove all the elements of the charged offense

beyond a reasonable doubt, Robert's alleged actions spoke for themselves in

terms of their voluntariness. And that he may have committed the same or

similar acts on other occasions in no way showed the voluntariness of his

conduct in the charged instances.

      This is important because very little distinguishes the inferential logic of

using other-crimes evidence to prove intent or voluntariness (he intended to

commit the other crimes, so it is likely he intended to commit the charged

crime) from the prohibited inference drawn from using such evidence to prove

general propensity (because he committed the other crimes, he is the type of

person who commits such crimes, so it is likely he committed this crime too).

See Robert G. Lawson, Kentucky Evidence Law Handbook, § 2.30[4][c], at 150

(5th ed. 2013). It is for this reason that, historically at least, this Court has

                                          18
recognized the increased potential intent poses for abuse of the "other

purposes" exception and has, therefore, insisted on heightened precautions

when using other-crimes evidence to show intent. As Professor Lawson has

explained, "[a]buse is most likely to occur when the need for the evidence is

ignored or overlooked or when the evidence is admitted without careful analysis

of its relevance to prove intent." Id. (footnotes omitted).

      Despite Noel's conclusory holding (and the misguided progeny it has

spawned), "evidence of other crimes should be admitted to prove intent only

when intent is in genuine dispute ... [, and] even when in dispute, a trial court

must still determine that the evidence is relevant to prove the intent to commit

the crime charged." Walker v. Commonwealth, 52 S.W.3d 533, 535-36 (Ky.

2001) (emphasis added); see also 1 Mueller 86 Kirkpatrick, Federal Evidence,

§ 112 (2nd ed. 1994) ("[C]ourts are wise ... to exclude the [other-crimes]

evidence ... where such proof is not necessary because intent is readily inferred

from the act itself ... or because there is no dispute on intent."). There is no

reason to treat attempts to use other-crimes evidence to show intent any

differently simply because the other crime involved the same victim as the

crime charged.

      The same is true of another commonly listed purpose for introducing

other-crimes evidence involving the same victim cited by the majority: "absence

of mistake or accident." Where is the mistake here, the absence of which the

evidence of Robert's other sexual acts with Jane was purportedly used to

prove? Evidence of other crimes can be admitted as proof of absence of mistake


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or accident only if mistake or accident is actually in genuine dispute. For

instance, if Robert had admitted to touching Jane's breast but claimed that it

had been an accident and that he had not meant to touch her there, then

evidence of the uncharged touchings would be admissible to prove absence of

accident for the charged touching. Because that was not the case here, the

other-crimes evidence cannot have been introduced for that purpose and,

therefore, can obviously not have been admissible for that purpose.

      "Mistake" (or "knowledge") could have been at issue if Robert had

defended that he did not know the age of his victim. See KRS 510.030 (creating

defense to statutory rape if the defendant did not know the victim was

underage). But that was not at issue in this case.

      "Motive," too, is an inappropriate ground for admitting the uncharged-

crimes evidence in this case. What do the other sexual acts prove about

Robert's motive for committing the charged crimes? At most, they show a

motive of achieving sexual gratification from activities involving a minor,

specifically Jane. From this, it follows that because his motive for committing

the other crimes was to satisfy his sexual desires for a minor (Jane), he

probably had the same motive for committing the charged crimes. But this is

nothing more than bootstrapping prohibited general-propensity evidence into

motive. It does nothing more than allow the jury to conclude that since Robert

committed all these uncharged sexual acts, he is the sort of person who

commits such sexual acts and, thus, probably committed the charged sexual

acts too. This is exactly what KRE 404 is intended to protect against. To again

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borrow a quote from Professor Lawson, `Jig protection against propensity

evidence is to be meaningful, courts must limit the use of the 'motive' exception

to situations where motive is pertinent to the issues of the case and where the

other crimes evidence shows a motive to commit the charged offense and not

just some offense." Lawson, supra, § 2.30[4][e], at 155.

       Nor was the evidence of other sexual conduct between Robert and Jane

admissible as proof of "plan" or "preparation." What plan? The evidence proved,

at most, that Robert had a general, undefined "plan" to achieve sexual

gratification through his exploits with Jane. But just like intent and motive, the

invocation of this "other purpose" to admit the other-crimes evidence here is all

smoke and mirrors. Use of other-crimes evidence to prove "plan" or

"preparation" (formerly, "common scheme") is admissible only when there is an

actual plan involving commission of both the uncharged and charged crimes

and when evidence of the plan, in particular, proves the commission of the

charged crime in some specific way, rather than merely showing a propensity

to commit the crime. See id. at § 2.30[4][g], at 160. Here, the other-crimes

evidence proved nothing beyond a propensity to commit the charged sex

crimes.

      Similarly, the majority has not shown, nor can it, how the uncharged-

crimes evidence here would be admissible to prove "opportunity" or "identity"

under KRE 404(b)(1). How do the other acts prove his opportunity to commit

the charged acts? How do they prove the identity of the perpetrator? Again, he

either did the charged acts, or he did not. The questions whether he had an

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 opportunity to commit them, or whether he in fact was the one that committed

 them, are subsumed in the allegations themselves.

       Finally, the majority last would allow the other-sex-acts evidence to be

admitted under KRE 404(b)(2) as being "inextricably intertwined" to the

charged crimes. That is, that the majority believes proof of all the sexual

activities is needed to show the entire, ongoing course of sexual conduct. I

disagree. The fact that Robert allegedly continued touching Jane hundreds of

times after the first charged touching in 1994, or that he performed oral sex on

Jane nine times in addition to the one instance for which he was charged, or

that he had Jane perform oral sex on him one or two times in addition to the

one for which he was charged, are all completely irrelevant to whether he

actually committed the charged offenses. Their only relevance is to serve the

prohibited purpose of allowing the jury to infer that since the defendant did all

this other sexual stuff with the victim, he must have also done the sexual stuff

for which he was actually charged. If the Commonwealth truly needed Robert's

entire alleged "course of conduct" to be considered by the jury, then it should

have charged him with all the crimes he allegedly committed during that

course of conduct.

      In sum, the uncharged-crimes evidence here served little purpose other

than to inform the jury that Robert was a bad person, i.e., that he was the type

of person who engages in sexual activities with a minor. It clearly violates

KRE 404(b)'s prohibition against other-bad-acts evidence to show action in

conformity therewith and is not properly admissible for any other purpose

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under KRE 404(b)(1) or (2). By applying the unsound, summary holdings in

Noel and its progeny, the majority erroneously concludes that the evidence of

Robert's other sexual conduct with Jane is admissible. Because I believe that it

is time for this Court to gather up the apples that spilled when Noel upset the

cart, I do not concur with Part ILB of the majority opinion.

      Venters, J., joins.


COUNSEL FOR APPELLANT:

Karen Shuff Maurer, Assistant Public Defender


COUNSEL FOR APPELLEE:

Jack Conway, Attorney General of Kentucky
James Coleman Shackelford, Assistant Attorney General




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