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

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-mg 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 404(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. On the night of the attempted rape the youngest victim pleaded with her mother that she did not want to get into bed with the stepfather but Arletha Rose Gilbert instructed the youngest and middle daughters to go to the bedroom with her husband because, “You can trust your Dad. He’s not going to hurt you.” Arletha was not passive, but actively aided her husband in attempting to rape the two youngest children.

Johnny Gilbert contends that the evidence that he introduced his stepdaughter to marijuana and alcohol along with his codefendant wife and forced them to watch sexually explicit movies while they engaged in sexual activity was irrelevant and offered only to show his lustful inclination contrary to Pendleton, supra. We find this argument without merit in regard to Johnny Gilbert as it was equally without merit with regard to his wife. The evidence was not introduced to show lustful inclination, but to indicate a pattern of conduct and motive for forcing the young women into adult sexual activity. “In order to determine exactly what did or did not happen at any particular stage in the sequence, it was necessary that the jury see the entire picture ... evidence that provides necessary perspective is competent.” Ware, supra. Juries do not have to perform their function of fact-finding in a vacuum.

Arletha Rose Gilbert was not entitled to a directed verdict of acquittal on the charges of complicity to use a minor in a sexual performance. Arletha Rose Gilbert contends that use of a minor in a sexual performance does not cover the activity in which she and her husband engaged. The youngest child testified that her mother slapped her when told of the attempted rape and was present when the girls were forced to disrobe. Johnny said he would often have his three stepdaughters remove their clothes as a form of discipline. When the girls refused, he had ripped off their clothes and on one occasion cut off the girls’ bra with a knife. The girls were forced to remove all of their clothing. They testified that he would stare and gaze at them until he apparently grew tired of looking.

Arletha Rose Gilbert argues that there was no sexual performance, and even so, the acts were a private family matter pursuant to the exception created by K.R.S. 531.300(4)(d). We do not agree because K.R.S. 531.310 applies, and she was guilty of complicity in using a minor in a sexual performance.

Johnny Gilbert’s act of ordering the girls to disrobe and ripping off their clothing, meets the statutory element of K.R.S. 531.-310 of “employs, consents to, authorizes or induces a minor.” There was a willful or intentional exhibition of the genitals. K.R.S. 531.300(4)(b). This exposure was not a private family situation. An adult stepfather who forces his three teenage daughters, ages 17, 16 and 15 to strip naked cannot be considered to be engaged in a family discipline. Clearly this is not typical or normal family behavior under any standard.

The acts were obscene and appealed to Johnny Gilbert’s prurient interest in sexual conduct involving minors in violation of K.R.S. 531.300(3). Here the stepfather repeatedly ordered the young women to disrobe and stared at them. On other occasions he attempted to have sexual relations with them. Clearly this indicates a prurient interest.

The Court of Appeals noted the Missouri case of State v. George, 717 S.W.2d 857 (Mo.App.1986), which is arguably inapplicable because Missouri has no family exception in its statute. This case provides some guidance to this Court in reviewing the case before it. In George, supra, the defendant argued that there was no performance, but the court rejected this noting that acts engaged in for a profit motive are not the only situations prohibited by the law. Here the defendants advance a similar argument. We find it to be without merit. There is no evidence of any kind in this record to indicate the General Assembly was concerned only with the commercial exploitation and public performances. By no stretch of the imagination do we believe that the General Assembly would condone the behavior of Arletha and Johnny Gilbert in this situation as a suitable example of the family exception clause of the statute.

Arletha Rose Gilbert was not entitled to a directed verdict of acquittal because the husband left the trailer on one occasion when the oldest daughter was told to remove her clothing. The record indicates that Johnny Gilbert did not leave the trailer until after the teenager had stripped. The evidence was sufficient to convict Arletha Rose Gilbert of complicity because she took an active role in forcing her daughters to remove their clothing. This is not a failure to act. It is an active participation in the crimes. It was the actions and words of the mother that made the girls submit to these types of criminal sexual exploitations.

We must now consider the arguments presented by Johnny Gilbert in his appeal. Some of the issues will be interchangeable and overlap because of the nature of the trial and the specific behavior of the code-fendants.

Johnny Gilbert also argues that his statement to police should have been suppressed because he was so intoxicated he could not make a knowing and intelligent waiver of counsel and the right to remain silent. He claims he drank 8 or 9 beers and took 2 to 10 nerve pills in a 30-minute period prior to going to the social worker’s office and then to the police station.

A careful examination of the record indicates that Johnny Gilbert remembered the alleged amount of beer and pills he consumed and was able to relate the circumstances around the giving of his statement. There is nothing to indicate that he hallucinated or fabricated the events. He did not appear intoxicated to either the social worker or police officer. Neither of these individuals detected any odor of alcohol on Johnny Gilbert. He was responsive to questioning and had no difficulty communicating and indicated that he understood his constitutional rights. Pursuant to the standard of Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974), there is no reason to believe that he did not voluntarily waive his rights before giving his statement. The trial judge correctly determined that he was capable of understanding his constitutional rights and consequently able to waive them. The trial judge further found that Johnny Gilbert understood what he was doing and saying when he gave his statement. Clearly the trial judge found it difficult to accept the version of events given by Johnny Gilbert.

Johnny Gilbert contends that it was error not to admit the testimony of his oldest stepdaughter that she had requested birth control devices and that the second oldest stepdaughter had prior sexual activity with individuals other than the defendant. The oldest daughter was 17 years old, and the second stepdaughter was 16 years old. K.R.S. 510.145 states that in this type of trial, reputation evidence and evidence of specific instances of the complaining witness’s prior sexual habits are not admissible by the defendant. The evidence was properly excluded.

It was not reversible error for the trial court to instruct the jury on first-degree wanton endangerment.

Johnny Gilbert claims that the evidence did not support an instruction on first-degree wanton endangerment but only an instruction on the lesser charge of second-degree wanton endangerment. He contends that his conduct may have been wanton but was not extreme wantonness, nor did his behavior constitute a substantial danger of death or serious physical injury to his oldest stepdaughter.

On the night of the incident, his wife testified that Johnny Gilbert was drunk and out of control. Johnny told Arletha to hand him the gun. Arletha took out the gun; put the clip in; one of them cocked it; Johnny put the gun to the oldest child’s head and asked her if she believed he would shoot her. Johnny repeated the question, shot the gun at the floor, put the gun back up to her head and asked her if she believed he would blow her brains out; then he repeated the question again. The victim testified the incident ended when Johnny Gilbert put the gun down and got another beer. This Court has held that pointing a gun, whether loaded or unloaded, is conduct sufficient to support an instruction of first-degree wanton endangerment. Thomas v. Commonwealth, Ky., 567 S.W.2d 299 (1978); Commonwealth v. Clemons, Ky., 734 S.W.2d 459 (1987).

Johnny Gilbert was not entitled to a directed verdict on charges of use of a minor in a sexual performance pursuant to K.R.S. 531.310.

Johnny Gilbert’s act of ordering the three stepdaughters to disrobe and ripping off their clothing establishes the statutory elements of “employs, consents to, authorizes or induces a minor.” The act was a sexual performance in that it meets the definition of sexual conduct by a minor, and there was a willful or intentional exhibition of the genitals of the young women. The exposure of teenage girls who are 17, 16 and 15 years of age, is not a matter of a private family nature. The adult stepfather forcing his three teenage daughters to disrobe is beyond the typical or normal behavior of any family. As discussed earlier in this opinion in regard to the behavior of the mother, the conduct of the stepfather also amounts to a proper charge of the use of a minor in a sexual performance. There is no comfort in the so-called family exception in a situation of this type.

The judgment of conviction is affirmed.

LAMBERT, REYNOLDS and SPAIN, JJ., concur. LEIBSON, J., dissents by separate opinion in which COMBS, J., joins. STEPHENS, C.J., dissents by separate opinion in which COMBS, and LEIBSON, JJ., join.