‘‘[W]e 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."
How later courts described this case
- ‘‘[W]e 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."
- explaining a defendant may not be convicted on the basis of having a criminal predisposition
- prior acts must be so sufficiently similar to demonstrate a modus operan-di
Written by the judges who cited it.
The opinion
WINTERSHEIMER, Justice,
dissenting.
I must respectfully dissent from that part of the majority opinion which reverses this conviction because the trial judge allegedly and improperly permitted testimony from the younger sister of the victim about similar crimes. The majority accepts the argument by Billings that the prejudicial effect of the testimony exceeded its probative value.
Evidence of independent sexual acts between the accused and persons other than the victim, if similar to the act charged, and not too remote in time, are admissible to show intent, motive or a common plan. Anastasi v. Commonwealth, Ky., 754 S.W.2d 860 (1988); Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985). In addition it has long been held that evidence of other crimes may be admitted when it has a special relationship to the offense charged because it would show the same *895 elements of motive, intent, plan or scheme. Lindsay v. Commonwealth, Ky., 500 S.W.2d 786 (1973).
The majority opinion bases its reversal on the statements in Adcock v. Commonwealth, Ky., 702 S.W.2d 440 (1986), which indicates that evidence of other crimes must be so similar and so unique as to indicate a reasonable probability that the crimes were committed by the same person. If the evidence only tends to show a disposition to commit a crime, it is not admissible. A careful review of the evidence in this case demonstrates that it meets the standard of Adcock, supra.
The younger sister testified that Billings, on two occasions, rubbed her between her legs and then on one occasion, exposed himself to her. The evidence of sexual activity with the younger sister was similar enough in act, place and time to the acts with the complaining witness to show motive, plan, scheme, or pattern of activity. Billings fondled the complaining witness, starting when she was 10 years old and lived in Stanley, Kentucky. The younger sister testified that Billings also fondled her and that the events occurred in Stanley, when she would have been 8 years old.
In my view, the majority has subjectively substituted its view of the evidence for that of the trial judge. My review of the record does not indicate that there was any abuse of discretion by the trial judge in allowing the testimony. The trial judge is always better positioned to observe the credibility of the witnesses and to rule appropriately. Accordingly, in the absence of an abuse of discretion, I believe the trial judge correctly admitted the testimony of the younger sister of the victim concerning earlier sexual acts committed on her by the defendant.
I would affirm the judgment of conviction in all respects.
REYNOLDS and SPAIN, JJ., join in this dissenting opinion.