CLARK V. COMMONWEALTH
CRIMINAL: JURY INSTRUCTIONS; PRIOR BAD ACTS
PUBLISHED: REVERSING AND REMANDING (MINTON)(SCOTT DISSENTING W/SEP OP W/CUNNINGHAM JOINING)
DATE RENDERED: 5/24/2007 (FROM BULLITT CIR. CT; HON. THOMAS WALLER)
On discretionary review, SC reversed sexual abuse convictions of former priest Daniel Clark. TC committed reversible error by (1) refusing to instruct the jury on sexual abuse in the second degree; and (2) by permitting the Commonwealth to present testimony to the jury of Clark’s prior sexual misconduct involving another victim.
In most situations, an instruction on second-degree sexual abuse is not a lesser-included offense when the primary charge is first-degree sexual abuse. TC in this case acted properly in refusing to instruct the jury on second-degree abuse as to Clark’s alleged conduct toward E.H. since E.H. turned twelve in October 2002, several months after the expiration of the time period set forth in the indictment . But in a situation like the charge involving L.H .,where the date(s) of the abuse are not described with particularity in either the indictment or the testimony such that a reasonable juror could have concluded that the victim was either eleven or twelve when the abuse occurred, TC erred by failing to instruct a jury on both first and second-degree sexual abuse.
As a prerequisite to the admissibility of prior bad acts evidence, the proponent of the evidence must "demonstrate that there is a factual commonality between the prior bad act and the charged conduct that is simultaneously similar and so peculiar or distinct that there is a reasonable probability that the two crimes were committed by the same individual. Conduct that serves to satisfy the statutory elements of an offense will not suffice to meet the modus operandi exception. Instead, the modus operandi exception is met only if the conduct that meets the statutory elements evidences such a distinctive pattern as to rise to the level of a signature crime. Here, the Commonwealth relies upon the following alleged similarities: all three victims were of the same approximate age ; Clark put his hands inside each victim’s pants and fondled the penis; Clark never asked any of the three victims to reciprocate his sexual contact with them ; and Clark was in a position of trust with each victim. By contrast, there are numerous differences in Clark’s conduct toward all three victims . As previously mentioned, not all of the victims accused Clark of orally abusing them. And though we agree with the trial court that it is not necessary that the abuse always occur in the same geographical location, the abuse of all three victims occurred in many different places, such as school, bedrooms, bathrooms, living rooms, and vehicles. Moreover, Clark sometimes abused the children when he was alone with them and sometimes abused them when others were around. Finally, Clark’s position with regard to M.M . and E .H . and L.H . is vastly different because he was a counselor and priest to M.M ., while he was a longstanding friend of the family of E.H. and L.H . So, it appears that, at most, there were as many differences as similarities between Clark’s past and current alleged conduct. This state of relative equipoise is insufficient to meet the demanding modus operandi exception.
By Scott Byrd