In this case, the petitioner is arguing that the charges against him should be dismissed with prejudice prior to trial because his transfer violated Section IV(5) of the IAD. Kentucky case law indicates that the proper manner for a defendant to assert his rights under the IAD is a motion to dismiss made before the trial court, which, if denied, can be appealed in the state courts. See Roberson v. Commonwealth, 913 S.W.2d 310, 315 (Ky. 1994). Here, it does not appear as if either the petitioner or his counsel have raised the IAD issue before the trial court, and they certainly have not pursued appellate relief as related to that issue as the petitioner has not yet been tried or convicted on the charges.
The relation to the continuing attack also renders this testimony probative because it provided context to the circumstances surrounding the attack. "The fact that the victim and the date of the crimes were the same, the crimes were related in nature, and the crimes were part of a continuing course of conduct, raises reasonable inferences bearing on motive, opportunity, intent and common plan or scheme." Roberson v. Commonwealth, 913 S.W.2d 310, 316 (Ky. 1994), overruled on other grounds, abrogation recognized by Parks v. Commonwealth, 89 S.W.3d 395 (Ky. 2002). Because the sexual assault was part of an uninterrupted series of violent and aggressive acts toward D.B., the trial court properly admitted the testimony. Additionally, the references to the sexual assault kit were fleeting, brief, and merely provided during testimony about evidence collection.
See Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977). See, e.g., Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002); Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky. 2000); Roberson v. Commonwealth, 913 S.W.2d 310, 316 (Ky. 1994) ("The fact that the victim and the date of the crimes were the same, the crimes were related in nature, and the crimes were part of a continuing course of conduct, raises reasonable inferences bearing on motive, opportunity, intent and common plan or scheme."); Keeton v. Commonwealth, 459 S.W.2d 612, 613 (Ky. 1970) KRE 404(b)(1).
(Emphasis added). Thus, "[i]f the prosecuting authority initiates proceedings, the prisoner must be tried within 120 days after his arrival in the jurisdiction seeking to try him[,]" Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 312 (1994), and if the time limitations are violated, "the trial court is compelled to dismiss the charges with prejudice." Id. at 313; Lovitt v. Commonwealth, Ky., 592 S.W.2d 133 (1979).
KRS 506.010(4). KRE 404(b)(1); Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 315-16 (1994); Messmear v. Commonwealth, Ky., 472 S.W.2d 682, 684 (1971) ("evidence of other sex activities of the same nature committed with and upon the same person is competent"); Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970); see generally R. Lawson, The Kentucky Evidence Law Handbook § 2.25, at 105-06 (3d ed. Michie 1993) for a discussion of the admissibility of evidence of other sexual crimes if perpetrated against the same victim as opposed to a different victim. L.B. was born on November 30, 1984.
Consistent with the jury's recommendation, the trial court imposed an aggregate sentence of fifty years' imprisonment. Roberson appealed to the Kentucky Supreme Court, which affirmed his conviction.Roberson v. Commonwealth, 913 S.W.2d 310 (Ky. 1994). The Court affirmed the substantive issues but remanded the case to the trial court for a determination on Roberson's claim that the continuance of his trial violated the Interstate Agreement on Detainers.