Snyder v. Commonwealth

Full title: JASON SNYDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jun 7, 2019

NO. 2017-CA-001287-MR (Ky. Ct. App. Jun. 7, 2019)

Opinion

NO. 2017-CA-001287-MR

06-07-2019

JASON SNYDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Robert C. Yang Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Joseph A. Newberg, II Assistant Attorney General Frankfort, Kentucky

TAYLOR, JUDGE

NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWTNE, JUDGE
ACTION NO. 15-CR-00923 OPINION
AFFIRMING

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BEFORE: JONES, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Jason Snyder brings this appeal from an April 27, 2016, final judgment of the Fayette Circuit Court, entered upon a conditional guilty plea to first-degree sexual abuse. We affirm.

On September 22, 2015, appellant was indicted upon first-degree sexual abuse with a victim under twelve years of age. It was alleged that appellant, an adult, sexually abused his eleven-year-old sister. On February 17, 2016, the Commonwealth filed a Notice of Intent to Introduce Evidence pursuant to Kentucky Rules of Evidence (KRE) 404(b) of uncharged instances of past sexual abuse of the victim by appellant. Appellant filed an "objection" to the notice and argued that KRE 404(b) prohibited introduction of such evidence at trial. The circuit court "sustained" the Commonwealth's notice and indicated it would admit such evidence at trial. Thereupon, appellant entered into a plea agreement with the Commonwealth. Appellant entered a conditional guilty plea to first-degree sexual abuse, and the Commonwealth recommended four-years' imprisonment. Appellant reserved the right to appeal the circuit court's evidentiary ruling. By final judgment entered April 27, 2016, appellant was sentenced to four-year's imprisonment. This appeal follows.

Appellant contends that the circuit court erred by concluding that the victim's purported testimony concerning past instances of uncharged sexual abuse by appellant was admissible at trial. Appellant maintains that these alleged past incidents of sexual abuse were inadmissible per KRE 404(b). Appellant argues that no exception to KRE 404(b) is applicable and that the evidence of alleged past sexual abuse was intended to merely prove his propensity to commit such crimes, which is improper.

KRE 404(b) states in part, as follows:

(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[.]

Under KRE 404(b), evidence of other crimes, wrongs, or acts is generally inadmissible to demonstrate "a defendant's propensity to commit crimes in order to show that he or she committed the charged crime." Robert G. Lawson, The Kentucky Evidence Law Handbook, §2.30(1)(a) (5th ed. 2013). However, evidence of other crimes, wrongs, or acts is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." KRE 404(b)(1). And, the circuit court's ruling upon the admissibility of evidence is reviewed for abuse of discretion.

In its notice to introduce KRE 404(b) evidence, the Commonwealth maintained:

The defendant is charged with Sexual Abuse in the First Degree involving a victim under the age of twelve. The victim is currently eleven years old. Although the offender has only been charged for one incident of abuse, the abuse began when the victim was around six year old and occurred on multiple occasions. The defendant is currently twenty years old and the prior instances of abuse that the defendant inflicted upon the victim occurred when the defendant was less than eighteen years old.

The charged offense stems from the most recent incident of sexual abuse. Like the uncharged acts, this event occurred while the defendant and the victim were alone. The defendant and victim are siblings and lived in the same household. The charged instance of abuse occurred while the victim and defendant were lying in bed. The defendant used his hand to touch her vagina and he stopped when their mother walked in the room.

The victim was interviewed at the Children's Advocacy Center and disclosed past sexual assaults which involved the defendant touching her genitalia in the same manner as the charged event. Again, the two were living in the same household. She described the prior assaults as occurring "a couple times a week." These assaults continued until the defendant moved out of the state to live with his father. The defendant moved back into the home sometime in early 2015 and the abuse immediately reoccurred. (The victim's statement taken at the Children's Advocacy Center was provided to the defense in discovery on October 1, 2015[,] at the defendant's arraignment.)

The defendant was interviewed by police and admitted to two distinct occurrences of abuse that he inflicted upon the victim. He admitted to the charged event, as well as one other event. When asked about the victim's statement about the abuse occurring more frequently, the defendant said he had suppressed many of his actions during that timeframe. (The defendant's statement to police was also provided in discovery at the defendant's arraignment on October 1, 2015).

February 17, 2016, Notice of Intent to Introduce Evidence at 1-2. Accordingly, the Commonwealth sought to introduce testimony of the victim that appellant had in the past on multiple occasions sexually abused her in similar ways and under similar circumstances as to the alleged crime.

As to this type of evidence, the Kentucky Supreme Court has held that "[e]vidence of similar acts perpetrated against the same victim . . . is 'almost always admissible,' under KRE 404(b), because it will almost always be significantly probative of a material issue aside from the defendant's character." Jenkins v. Commonwealth, 496 S.W.3d 435, 458 (Ky. 2016). In particular, the Supreme Court observed that past acts of sexual abuse against the same victim are often admissible to prove motive of the defendant:

As is often the case when sex offenses are alleged, one of the principal issues was whether a crime occurred at all. Jane alleged that Jenkins forced her into sex acts, while Jenkins denied sexual contact altogether. Relevant to that issue was whether Jenkins had a motive to do as Jane alleged, and Jane's testimony to the effect that Jenkins had done similar things to her during her childhood (seemingly without consequence) tended to show that Jenkins did indeed find Jane attractive as a vulnerable object of his sexual impulses. In this instance, therefore, Jane's "same victim" testimony served not as propensity evidence tending to show merely that Jenkins had a propensity for this type of crime; it related rather to this particular crime by tending to show that Jenkins had a motive involving this particular victim.

Id. at 458; see also Gullett v. Commonwealth, 514 S.W.3d 518, 530 (Ky. 2017).

Likewise, in the case sub judice, the victim's testimony concerning past uncharged acts of sexual abuse by appellant is admissible as it demonstrates motive. Appellant points out that "this remains a 'he-said, she-said' case." Reply Brief at 3. Thus, appellant's motive is relevant, and, as stated by the Supreme Court, the victim's testimony that appellant had in the past committed similar acts "tended to show that [appellant] did indeed find [the victim] attractive as a vulnerable object of his sexual impulses." Jenkins, 496 S.W.3d at 458. Additionally, we cannot conclude that the probative value of such evidence was substantially outweighed by the danger of undue prejudice. KRE 403. Consequently, the past similar acts of sexual abuse are admissible as demonstrating appellant's motive, and the circuit court did not err by so concluding.

We view any remaining contentions of error as moot or without merit.

For the foregoing reasons, the final judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR. BRIEFS FOR APPELLANT: Robert C. Yang
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Joseph A. Newberg, II
Assistant Attorney General
Frankfort, Kentucky