APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHY LAPE, JUDGE
COUNSEL FOR APPELLANT: Jeffrey Brunk The Brunk Firm, PLLC
Trisha Brunk The Brunk Firm, PLLC
COUNSEL FOR APPELLEE: Andy Be shear Attorney General of
Kentucky James Daryl Havey Assistant Attorney General
Kenton Circuit Court jury convicted Appellant, Robbie Whaley,
of seventeen counts: six counts of third-degree sodomy;
criminal attempt to commit third-degree sodomy; six counts of
first-degree sexual abuse; three counts of first-degree
sodomy; and, in the final count, found him to be a
first-degree persistent felony offender. In accordance with
the jury's recommendation, the trial court fixed
sentences totaling life without the possibility of parole for
twenty-five years. Whaley now appeals as a matter of right,
Ky. Const. § 110(2)(b).
asserts six claims of error on appeal; He claims that the
trial court erred by: (1) failing to sever the counts of the
indictments, (2) allowing evidence of other crimes, wrongs or
acts, (3) disallowing cross-examination regarding
pornographic images, (4) allowing expert testimony regarding
anal sodomy, (5) allowing the complaining witnesses to be
referred to as victims, and (6) denying Whaley's motion
for mistrial. For the following reasons, we affirm
Whaley's convictions and their corresponding sentences.
was indicted on October 8, 2015, for five counts of
third-degree sodomy for offenses committed against Sander,
minor less than sixteen years of age; three counts of
third-degree sodomy; and one count of first-degree sexual
abuse for offenses committed against Logan, a minor less than
sixteen years of age. He was also indicted on one count of
being a first-degree persistent felony offender.
after his initial indictment, Whaley was also indicted on
October 13, 2016, for first-degree sodomy and first-degree
sexual abuse for offenses committed against Matt, a minor
less than twelve years of age; and for two counts of
first-degree sodomy and three counts of first-degree sexual
abuse for offenses committed against John, a minor less than
twelve years of age.
originally moved the court to sever the 2015 and 2016
indictments from one another and hold two separate trials.
However, at the trial court's hearing regarding the
motion to sever, Whaley requested to sever the indictments
into four separate trials-with a separate trial for the
events surrounding each of his alleged victims. The trial
court denied this motion.
now turn to the facts surrounding the indictments. Whaley was
a mixed-martial-arts trainer and held classes at his
residence. The alleged victims from the 2015 indictment were
both Whaley's martial arts students.
the first of the alleged victims, began training at
Whaley's residence in the summer of 2014. The first
sexual act that Sander testified about was uncharged. Sander
testified that this initial sexual contact with Whaley
occurred in Whaley's vehicle, with the minor both
performing oral sex on and receiving oral sex from Whaley.
the charged acts, Sander testified that, while using a
kiwi-flavored lubricant, Whaley touched his mouth to
Sander's penis in Whaley's bedroom. Sander also said
he touched Whaley's penis with his mouth. Further, Sander
stated he inserted his penis into Whaley's anus. Sander
said that Whaley attempted to put his penis in Sander's
anus but was unable to. Sander testified that after these
incidents, he stopped visiting Whaley's residence. Soon
after the events in question, the police contacted
Sander's mother and began an investigation.
was Whaley's next alleged victim. Logan said that he
began training at Whaley's residence but stopped after a
couple of sessions. Logan continued to visit the residence
after he stopped training. He testified that he was fifteen
years old when Whaley touched him. He stated that Whaley had
supplied him with marijuana and moonshine during his visits
at Whaley's residence. Logan stated that Whaley touched
Logan's penis more than once. Further, he said that he
placed his mouth on Whaley's penis more than once. Logan
testified the first time Whaley touched him they were on the
couch and he was fully clothed. He said that Whaley touched
his penis and stopped when he told him to.
said the second time Whaley touched him, he (Logan) was
intoxicated. Logan stated that he was on Whaley's bed
when Whaley pulled his (Whaley's) pants down and started
touching Logan's body. Logan said he put his mouth on
Whaley's penis, then told Whaley he did not want to, and
the encounter ended. When asked if Whaley said anything about
telling anyone, Logan stated that Whaley told him not to tell
anyone. Logan testified that on the third occasion he was
also intoxicated. He stated that he was on Whaley's bed
and he placed his mouth on Whaley's penis again. Logan
said that on the last occasion, he passed out from
intoxication. He said that he woke to Whaley's penis
penetrating his anus. Logan testified that he told Whaley to
get off him, and Whaley did so. Logan said that Whaley told
him not to tell anyone about these incidents, but that he
told his mother what happened. Logan's mother testified
that when Logan told her, she contacted the police and her
case worker, and then took him to the Child Advocacy Center
upon their advice.
was arrested on August 6, 2015 for the offenses committed
against Sander and Logan. The indictment states that the
offenses to Sander occurred on or between October 1, 2014 and
January 23, 2015. It stated that the offenses to Logan
occurred on or between July 15, 2014 and July 15, 2015.
Whaley was released on March 18, 2016.
two remaining victims are Whaley's twin nephews. The
indictment states that the offenses to John and Matt occurred
on or between June 11, 2016 and July 25, 2016. The nephews,
John and Matt, were eight years old when they testified. John
testified that he had used his hands to touch Whaley's
penis and Whaley had used his hands to touch his penis.
Further, he said that he had also touched Whaley's penis
with his mouth and Whaley had touched John's penis with
his mouth. He stated that these occurrences each happened
more than once. John testified that Whaley showed him two
boys doing stuff with their private parts on his television.
testified that Whaley made him perform oral sex in the
bathroom of Whaley's residence. Further, he said that
Whaley had given him baths and touched his penis with his
hands during the bath. Matt told a cousin about what Whaley
had done, and the cousin text-messaged the twins'
grandmother. The police were contacted and the twins were
interviewed at the Children's Advocacy Center.
took the stand and denied committing any sexual offenses
against the four alleged victims. Further, he denied
supplying drugs or alcohol.
Failure to Sever
argues that the trial court abused its discretion by denying
his motion to sever, and, instead, holding a single trial. We
are not persuaded by his argument.
initially moved the court to sever the counts contained in
the two indictments from one another and grant two separate
trials pursuant to RCr 8.31. He did so in a written request,
requesting that counts one-nine (counts against Sander and
Logan) be tried separately from counts eleven-seventeen
(counts against John and Matt). However, at the hearing on
the motion to sever, he requested four separate trials as
opposed to the originally requested two. The trial court
denied this motion, determining that the circumstances of the
charged offenses were similar.
Court held in Garrett v. Commonwealth:
The interaction of RCr 9.12 and RCr 6.18 allows the charges
brought in separate indictments to be joined for trial only
when the offenses are "of the same or similar
character" or are "based on the same acts or
transactions connected together or constituting parts of a
common scheme or plan." When the conditions set forth in
RCr 6.18 and RCr 9.12 are present, the trial judge has broad
discretion to allow the joinder of offenses charged in
separate indictments. We review such decisions for abuse of
discretion. Nevertheless, to be reversible, an erroneous
joinder of offenses must be accompanied by "a showing of
prejudice" to the defendant. This showing of prejudice
cannot be based on mere speculation, but must be supported by
534 S.W.3d 217, 223 (Ky. 2017). The Garrett Court
further held "a significant factor in identifying
prejudice from joining offenses for a single trial is the
extent to which evidence of one offense would be inadmissible
in the trial of the other offense." Id. citing
Hammond v. Commonwealth, 366 S.W.3d 425, 428-29 (Ky.
Garrett cited this Court's precedent stating:
Offenses closely related in character, circumstance and
time need not be severed. If evidence from one of the
offenses joined in the indictment would be admissible in a
separate trial of the other offenses, the joinder of offenses
generally will not be prejudicial. Additionally,
considerations of judicial economy and the efficiency of
avoiding multiple trials are reasons for joint trials.
Garrett, 534 S.W.3d at 223; citing Cohron v.
Commonwealth, 306 S.W.3d 489, 493-94 (Ky. 2010); see
also Peacher v. Commonwealth, 391 S.W.3d 821, 836 (Ky.
examine the relevant Kentucky Rules of Criminal Procedure.
RCr 6.18 reads:
Two (2) or more offenses may be charged in the same complaint
or two (2) or more offenses whether felonies or misdemeanors,
or both, may be charged in the same indictment or information
in a separate count for each offense, if the offenses are of
the same or similar character or are based on the same acts
or transactions connected together or constituting parts of a
common scheme or plan.
separate trials, RCr 8.31 reads:
If it appears that a defendant or the Commonwealth is or will
be prejudiced by a joinder of offenses or of defendants in an
indictment, information, complaint or uniform citation or by
joinder for trial, the court shall order separate trials of
counts, grant separate trials of defendants or provide
whatever other relief justice requires. A motion for such
relief must be made before the jury is sworn or, if there is
no jury, before any evidence is received. No reference to the
motion shall be made during the trial. In ruling on a motion
by a defendant for severance the court may order the attorney
for the Commonwealth to deliver to the court for inspection
in camera any statements or confessions made by the
defendants that the Commonwealth intends to introduce in
evidence at the trial.
RCr 9.12 reads:
The court may order two (2) or more indictments,
informations, complaints or uniform citations to be tried
together if the offenses, and the defendants, if more than
one (1), could have been joined in a single indictment,
information, complaint or uniform citation. The procedure
shall be the same as if the prosecution were under a single
indictment, information, complaint or uniform citation.
Court held in Peacher v. Commonwealth:
Because a certain degree of prejudice is inherent in the
joinder of offenses, as it is in any indictment, this Court
has explained that the "prejudice" calling for
severance or other relief under RCr 9.16 is "undue
prejudice," i.e., prejudice that goes beyond the
inherent prejudice to that which is unnecessary and
unreasonable. Romans v. Commonwealth, 547 S.W.2d 128
(Ky.1977). Although our rule mandates relief when such undue
prejudice appears likely, we have entrusted application of
the rule to the trial court's discretion,
Debruler, 231 S.W.3d at 752 and we have many times
noted that an erroneous severance ruling does not justify
appellate relief unless it resulted in actual prejudice to
the party opposing the ruling. Cohron v.
Commonwealth, 306 S.W.3d 489 (Ky.2010) (citing
Sherley v. Commonwealth, 889 S.W.2d 794 (Ky.1994)).
argues that the trial court's joinder of the indictments
caused him to be unfairly prejudiced, violated his Fifth and
Fourteenth Amendment rights, and violated his rights pursuant
to sections Two and Eleven of the Kentucky Constitution. He
supports this argument by stating "[t]he proof
concerning one victim unduly influenced the jury when the
proof of the other complaining witnesses was allowed to be
heard by the same jury."
he emphasizes the differences between the offenses: the first
two charges occurred years apart from the last two; two of
the victims were family members of Whaley and two were not
related to him; two of the victims were seven years old when