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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

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\ BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 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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2014-SC-000284-MR 

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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 thenwife, 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 

1The 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 otherbad-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, 2the 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: firstdegree 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 unchargedcrimes 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 unchargedcrimes 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 

19 
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 unchargedcrimes 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 unchargedcrimes 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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