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Whaley v. Commonwealth

Supreme Court of Kentucky

February 14, 2019

ROBBIE WHALEY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHY LAPE, JUDGE NO. 15-CR-00792

          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

          OPINION

          WRIGHT JUSTICE

         A 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).

         Whaley 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.

         I. BACKGROUND

         Whaley was indicted on October 8, 2015, for five counts of third-degree sodomy for offenses committed against Sander, [1] a 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.

         A year 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.

         Whaley 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.

         We will 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.

         Sander, 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.

         Regarding 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.

         Logan 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.

         Logan 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.

         Whaley 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.

          The 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.

         Matt 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.

         Whaley took the stand and denied committing any sexual offenses against the four alleged victims. Further, he denied supplying drugs or alcohol.

         II. ANALYSIS

         A. Failure to Sever

         Whaley 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.

          Whaley 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.

         This 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 the record.

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. 2012).

         Also, 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. 2013).

         We will 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.

         Regarding 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.

         This 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)).

391 S.W.3dat838.

         Whaley 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."

         Further, 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 the ...


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