Gilbert v. Commonwealth

838 S.W.2d 376, 1991 Ky. LEXIS 155, 1991 WL 215440
CourtKentucky Supreme Court
DecidedOctober 24, 1991
Docket90-SC-217-DG, 90-SC-226-DG
StatusPublished
Cited by26 cases

This text of 838 S.W.2d 376 (Gilbert v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilbert v. Commonwealth, 838 S.W.2d 376, 1991 Ky. LEXIS 155, 1991 WL 215440 (Ky. 1991).

Opinions

WINTERSHEIMER, Justice.

Arletha Rose Gilbert was convicted of wanton endangerment by complicity; one count of criminal attempt to commit rape, first degree; and nine counts of the use of a minor in a sexual performance by complicity. Johnny Gilbert was convicted of wanton endangerment in the first degree; two counts of rape in the first degree; two counts of criminal attempt to commit rape in the first degree; and nine counts of use of a minor in a sexual performance. The Gilberts were tried together and the judgment of conviction resulted from a jury verdict. Each was sentenced to ten years in prison.

Various issues are raised by the Gilberts including the applicability of K.R.S. 531.310 which prohibits the use of a minor in a sexual performance. They claim that the three teenage children were forced to remove their clothing in the family trailer home as a form of parental discipline and that consequently they are immune from prosecution because of the so-called “family exception” to the statute.

Johnny Gilbert is the stepfather of three teenage daughters, ages 17, 16 and 15. Arletha Rose Gilbert is the natural mother of the three teenagers.

Arletha Rose Gilbert first argues that she was prejudiced by the amendment of Counts II and III in the indictment against her codefendant husband. The amendment changed the date of the offenses from 1985 to 1986. We find her complaint unconvincing. The mother was never charged with complicity to these crimes. The amendment did not affect her case.

She claims her codefendant husband based his entire defense on the fact that he could demonstrate that no sexual activity could have occurred with the children dur-[378]*378mg the summer of 1985. She states that the prejudice to him affects her case.

The middle stepdaughter testified that her mother and Johnny Gilbert married in May, 1985, and that two incidents of rape occurred that summer. She remembered the time because she was going to be a freshman in high school. The youngest stepdaughter testified that trouble with the husband began the summer after she completed the sixth grade which was the summer after her parents married. Johnny Gilbert testified that he was not married until 1986. Based on this testimony and the Commonwealth’s bill of particulars which noted that the girls remembered the dates primarily from their school grade, the trial judge allowed amendment of the indictment.

RCr 6.16 provides that the trial judge may permit an indictment to be amended any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. Here, neither the husband or the wife suffered any substantial prejudice from the amendment. The husband did not base his entire defense on a mix up in dates; he also denied any sexual impropriety with the victims. The defendants knew before trial that the husband had no access to the middle child before 1986 and they were not surprised or misled by the indictment or its amendment. The trial judge did not abuse his discretion by permitting the amendment.

The trial judge did not err in allowing the amendment to Counts II and III in the indictment to reflect the dates of occurrence as 1986. Johnny Gilbert claims his entire defense was based on the fact he could demonstrate there was no sexual activity in the summer of 1985. A review of the record indicates that he also denied any criminal activity with his stepdaughters.

We do not believe he was unfairly prejudiced by this amendment and he was not misled. As stated in regard to his wife, RCr 6.16 permits the amendment any time before a verdict if the substantial rights of the defendant are not prejudiced. Here, Johnny Gilbert knew before trial that the dates were calculated by the three stepdaughters remembering in what grade they were enrolled at the time of the incidents. The trial judge did not abuse his discretion when he denied the motion for mistrial.

It was not reversible error to allow the introduction of evidence that Johnny Gilbert gave his stepdaughters marijuana and alcohol and that he forced them to watch sexually explicit movies while he and his wife engaged in sexual activities. All three of the teenage children testified that he offered them marijuana and alcohol the first summer he lived with them. The testimony was that the defendants told the girls that if they did not watch the movies they would force them to remove their clothing and make them perform the same acts as depicted in the films. The Court of Appeals correctly found that the evidence reflected a part of the overall scheme to aid the stepfather to attain his objects which was to engage in sexual intercourse with his three stepdaughters. The Court of Appeals correctly analyzed the striking of the words “lustful inclinations” from the jurisprudence of Kentucky. It also acknowledged that since Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985), evidence of other crimes is allowed when the crime has a special relationship to the offense charged and shows motive, identity, absence of mistake, intent or knowledge of common scheme or plan.

Arletha Rose Gilbert was charged with complicity to rape, attempted rape and the use of a minor in sexual performance. These charges indicate a pattern of conduct, or common scheme or plan, with her husband from the time of his entry into the home until the girls were taken from the home.

The citation to Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990) as a support for Arletha Rose Gilbert’s position is misplaced. Drumm, supra, reiterates the necessity of establishing an exception to the prohibition against introducing evidence of collateral criminal activity. Here the exception has been sufficiently established because the evidence was admitted to show a plan which is an exception recognized by the Federal Rule of Evidence [379]*379404(b) which this Court adopted in Drumm.

The evidence was not presented to show “lustful inclination” but to indicate a pattern of conduct and motive for the behavior of the defendants. It is necessary for the jury to see the entire picture and evidence that provides the necessary perspective is competent. Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976).

It was not reversible error for the trial judge to refuse a directed verdict of acquittal on the four counts of complicity to attempted first-degree rape. Arletha Rose Gilbert was convicted of only one of these counts.

She contends that she was guilty of only neglect and could not be held legally responsible pursuant to Knox v. Commonwealth, Ky., 735 S.W.2d 711 (1987). The facts in this case are not identical to those in Knox, supra. Here Arletha Rose Gilbert encouraged her daughter to engage in sexual intercourse with Johnny Gilbert and intentionally aided her husband in the commission of rape in violation of K.R.S. 502.-020(l)(b). The youngest daughter advised the mother the first summer that the stepfather had been trying to have sex with the youngest daughter and the middle daughter.

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Gilbert v. Commonwealth
838 S.W.2d 376 (Kentucky Supreme Court, 1991)

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Bluebook (online)
838 S.W.2d 376, 1991 Ky. LEXIS 155, 1991 WL 215440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-commonwealth-ky-1991.