Respectfully, I dissent from part A of the majority opinion. As explained by the majority, evidence of modus operandi may be used to prove the elements of a subsequent offense if the facts surrounding the prior misconduct are so “strikingly similar to the charged offense as to create a rea*76sonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). The “strikingly similar” requirement does not necessitate the facts to be identical in all respects. Dickerson v. Commonwealth, 174 S.W.3d 451, 469 (Ky.2005). In this case, the prior bad acts evidence was offered to prove that the crimes did, in fact, occur (the corpus delicti) by demonstrating a modus operandi. See id. at 468-69.
There are numerous similarities of fact surrounding the charged instances of sexual abuse and S.B.’s prior bad acts testimony. All three of the victims were females under the age of consent. All of the acts were committed during an “outing” of some sort, while the victims went to sleep at night with Appellee lying next to them. Although S.B. was related to Appellee where J.R. and H.S. were not, all three victims were close to Appellee and were in a position of trust and vulnerability to him.
The facts surrounding the allegations of abuse also differ, and as the majority notes, attorneys on each side will invariably produce lists of similarities and dissimilarities between the prior bad acts and the present facts. However, it is the trial court’s function to weigh and evaluate these facts when making its ruling, and this Court should not disturb such a ruling absent an abuse of discretion. Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005). In weighing the similarities and differences between the instances of abuse, the trial court did not abuse its discretion in admitting the evidence. Cf. Dickerson, supra, at 468 (Evidence of a prior act of sodomy was inadmissible where victim “did not testify to any facts constituting the sexual offenses,” and did not even testify as to where the acts occurred). The trial court is entitled to deference in this regard, and therefore, I would reverse the Court of Appeals and affirm Appellee’s conviction.
SCOTT, and WINTERSHEIMER, JJ., join this dissent.