# Bell v. Commonwealth

> Kentucky Supreme Court · March 24, 1994 · 875 S.W.2d 882

URL: https://www.frixlaw.com/law-library/cases/9763371

## Case

- **Full name:** David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** March 24, 1994
- **Citations:** 875 S.W.2d 882; 1994 Ky. LEXIS 36; 1994 WL 94166
- **Precedential status:** Published
- **Opinion:** Dissent by Wintersheimer
- **Judges:** Lambert, Leibson, Reynolds, Stumbo, Stephens, Wintersheimer, Spain
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763371

## How later opinions describe it (automated extraction)

- explaining that “trial courts must apply [KRE 25 404(b)] 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”
- explaining KRE 404(b) must be strictly construed to eliminate evidence of criminal propensity towards a specific crime

## Opinion text

WINTERSHEIMER, Justice,
dissenting.
I respectfully dissent from the majority opinion because it was not reversible error to admit the report of the physician or the testimony of the victim’s brother.
KRS 422.300 specifically permits the admission of certified hospital records in certain circumstances. Young v. J.B. Hunt Transportation, Inc., 781 S.W.2d 503 (1989). The rules of evidence must be considered in this situation. The records in this case were from the office examination by the treating physician. The doctor ordinarily kept this type of record in the regular course of her professional activities, and they should be admitted as an exception provided for business records pursuant to KRE 803(6).
This report consists of two pages of laboratory results and one page which is a detailed examination record largely typewritten from the dictation of the physician and partly in the handwriting of the physician. It contains a history of the alleged sex abuse, including an accusation that Bell was slapping the mother of the child, comments with respect to the socialization of the child, findings on medical examinations, including a small ulcer on the rectum of the child, and concludes with a diagnosis of sexual abuse and a recommendation for counseling. I believe that the admission of this testimony came within the purview of the exceptions to the hearsay rule announced in Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990) because the medical report was made for the purpose of medical diagnosis and treatment.
The testimony by the brother of the victim was properly admitted because it showed intent, motive or common plan or method of operation. Anastasi v. Commonwealth, 754 S.W.2d 860 (1988). The common characteristics here were that both victims were brothers and considered Bell as a father when they were forced to submit to the oral sodomy. It is always a difficult decision to admit such evidence, but I believe that discretion must be left in the hands of the trial judge. The requirement for showing a common plan or indicating a method of operation can be met in a child sex abuse case because the principal similarity is that the victims are all children and are either required to perform or submit to sexual acts. The fact that the crimes are all sex crimes and the victims *892 are all children makes this kind of situation so strikingly similar as to be a signature event and so unique as to meet the standard of demonstrating a common plan or method of operation.
I would affirm the judgment of conviction in all respects.
SPAIN, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763371. Public record. Not legal advice.