Bush v. Commonwealth

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ARRIN EDWARD BUSH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2019-CA-1169-MR

Court of Appeals of Kentucky

December 9, 2022

NOT TO BE PUBLISHED

APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 18-CR-00434

BRIEFS FOR APPELLANT:

Aaron Reed Baker Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron Attorney General of Kentucky

Perry T. Ryan Frankfort, Kentucky

BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.

OPINION

THOMPSON, K., JUDGE

Arrin Edward Bush appeals from his conviction and sentence by the Kenton Circuit Court after a jury trial, arguing various trial errors. We reverse his conviction and sentence based on improper character evidence and remand.

Bush was indicted for criminal attempt to commit rape in the first degree and three counts of sexual abuse in the first degree for acts he committed against H.C. (victim) on February 19, 2018. The three-day jury trial, held on May 14-16 of 2019, included testimony given by other juveniles Bush supposedly groomed, victim M.C. (victim's sister), various detectives, and expert witnesses. Bush and his wife testified for the defense.

Bush was convicted on all counts and the jury recommended a total sentence of fifteen years of incarceration (ten years on count one, one year on count two, and two years each on count three and four to be served consecutively). On July 8, 2019, through the Judgment and Sentence on Verdict, Bush was sentenced in accordance with the jury's recommendation.

Bush knew the twelve-year-old victim as Bush was a family friend. Bush played softball with victim's father, and her mother often babysat Bush's infant son. On February 19, 2018, Bush asked victim's mother to babysit, explaining that both his wife and son were ill, and Bush needed to run errands. Victim's mother was unavailable to babysit, so victim volunteered to babysit instead.

Bush picked victim up from her home and drove her to his house in Covington, Kentucky. Victim alleged that, upon arrival, the baby was already in his crib and Bush immediately instructed his wife to go into the bedroom. Once his wife was out of the room, victim alleged that Bush sexually assaulted her on his couch. Part of the alleged assault involved Bush rubbing his penis on the outside of victim's vagina.

At some point, victim asked to be taken home and Bush did so. Once home, victim told her friend, then her parents, what had just happened. Her mother drove her to the police station to report the incident, then to the emergency room and St. Elizabeth Hospital, and finally to the emergency room at Cincinnati Children's Hospital.

Victim tested positive for chlamydia on the day of the incident but was negative when tested by a physician on the following day. Unrefuted expert testimony at trial revealed that if the perpetrator of sexual assault had rubbed his penis in the victim's vaginal area, any secretions left by the perpetrator could have caused the positive chlamydia test without resulting in victim being infected. Several days later, after his arrest, Bush tested positive for chlamydia.

Bush's testimony was that he was in fact the victim of sexual assault by victim which occurred while he was sleeping. Bush testified his wife and son were sick, and he needed a babysitter to help his wife with the baby as he was supposed to go help his dad. He noted that his home is very small, and the bedroom door does not close because a chest of drawers sticks out too far. He explained he originally wanted victim's mother to babysit but agreed to have victim watch the baby. Once it became clear his father was not going to call him, Bush testified he decided to take a nap, took his sleeping medication, and fell asleep on the couch.

Bush testified he woke up to his wife screaming and shaking him and that victim was pulling her hand out of his pants. According to Bush, his wife was screaming at the victim "What are you doing?" and said victim had to go. He then took the victim home. Later, Bush learned that his father had died that day. Bush explained that he did not tell victim's family about what she had done because he was embarrassed to be the victim of a sexual assault and did not think anyone would believe him.

Bush's wife testified consistently with Bush. She explained after Bush's father failed to call, Bush told her he needed to get some sleep because he had been up all the previous night with their sick baby, and she gave him his prescription sleep medicine. Bush's wife stated that because Bush normally sleeps with a C-PAP machine, she came out to check on him to make sure he was still breathing. She saw her husband was asleep, victim was on her phone, and victim's other hand was in Bush's pants. Bush's wife testified she was shocked, she screamed, her husband did not wake up, she had to shake him awake and told him: "You need to get her out of here." Victim asked to use the bathroom, they let her, and then Bush took victim home.

Bush's wife said she and Bush discussed afterwards what they should do as they did not believe that anyone would believe what had happened. She then called a friend whose husband is a lawyer and based on their advice hired a lawyer.

Bush raises numerous arguments on appeal. He contends that the trial court erred when it: (1) allowed numerous incidents of improper character evidence in violation of Kentucky Rules of Evidence (KRE) 404(b); (2) prohibited Bush from introducing evidence that other men's DNA was found in victim's panties; (3) allowed Detective Ross of the Covington Police Department to improperly bolster victim's testimony; (4) allowed questioning and evidence to be introduced that violated Bush's constitutional rights; and (5) permitted the sentencing phase to be tainted by incorrect information. For the reasons stated herein, we agree that the trial court improperly admitted character evidence in violation of KRE 404(b) and reverse and remand on that basis. We address all remaining issues only to the extent we believe they will arise again on remand. See Southworth v. Commonwealth, 435 S.W.3d 32, 55 (Ky. 2014).

KRE 404(b) states, in relevant part, that:

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; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

The Kentucky Supreme Court has consistently interpreted KRE 404(b) as exclusionary in nature because "[i]t is a well-known fundamental rule that evidence that a defendant on trial had committed other offenses is never admissible unless it comes within certain exceptions, which are well-defined in the rule itself." Commonwealth v. Buford, 197 S.W.3d 66, 70 (Ky. 2006) (quoting Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994) (quoting Jones v. Commonwealth, 303 Ky. 666, 198 S.W.2d 969, 970 (1947))).

We review a trial court's ruling regarding admission of evidence under an abuse of discretion standard. Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013) (footnote omitted).

Trial courts must apply KRE 404(b) cautiously, with an eye towards eliminating evidence which is relevant only as proof of an accused's propensity to commit a certain type of crime. To determine whether evidence of prior bad acts is admissible, we must decide if the evidence is relevant for some purpose other than to prove the criminal disposition of the accused, probative as to the actual commission of the prior bad act, and not overly prejudicial under KRE 403.

Id. at 260 (internal quotation marks, footnotes, and brackets omitted).

Prior to the trial, the Commonwealth filed numerous notices pursuant to KRE 404(c) which detailed its intent to call witnesses whose testimony would offer proof of Bush's modus operandi. At trial, the Commonwealth called twelve-year-old H.M.; H.M.'s legal guardian; thirteen-year-old E.W.; and sixteen-year-old M.D. to testify about what it called Bush's "grooming" behaviors as proof of modus operandi. On appeal, Bush argues the testimony of H.M., H.M.'s guardian, E.W., and M.D. was improperly admitted because it did not demonstrate modus operandi and, therefore, did not fall under one of the exceptions enumerated in KRE 404(b). We agree.

"If the proof in this case is to be considered modus operandi, then there must be such similarity between the proof offered and the facts at trial that the identity of the defendant can be determined from the similarities." Southworth, 435 S.W.3d at 53.

[I]t is not the commonality of the crimes but the commonality of the facts constituting the crimes that demonstrates a modus operandi. Although it is not required that the facts be identical in all respects, evidence of other acts of sexual deviance . . . must be so similar to the crime on trial as to constitute a so-called signature crime.

Dickerson v. Commonwealth, 174 S.W.3d 451, 469 (Ky. 2005) (internal quotation marks and citation omitted).

We first turn to the testimony of H.M. The Commonwealth's notice provided in relevant part:

During the investigation, H.M. disclosed that she met [Bush] through her mother, who lived next door to [Bush]. After meeting [Bush], H.M. indicated [Bush] bought her a birthday gift and began texting her on Snapchat. H.M. stated [Bush] would ask her about clothing and send her pictures of clothing. H.M.'s guardian learned of the conversations and blocked [Bush]. H.M.'s guardian deleted the

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