dissenting.
Respectfully I dissent.
The majority opinion seems to imply that Violett’s purpose in attempting to introduce into evidence letters from his step-daughter (a complaining witness) to her boyfriend was to introduce evidence of his step-daughter’s sexual activity. If this were indeed the only purpose, I would agree the letters should be excluded.
However, the purpose of introduction was, for the most part, to introduce evidence of a conspiracy between the step-daughter and her boyfriend to “get” Violett and “make his life hell.” As evidence of a conspiracy, the letters were extremely relevant to Violett’s defense that his step-daughter and her boyfriend concocted a criminal charge against Violett to get him out of the way.
The purpose of the former Rape Shield Statute, and of KRE 412 which replaced it, is to protect the complaining witness from “becoming the party on trial through the admission of evidence that is neither material nor relevant to the charge made.” Barnett v. Commonwealth, Ky., 828 S.W.2d 361, 363 (1992). Evidence that is relevant and material should be admitted, even if it relates to a witness’s sexual behavior.
The majority opinion states that Violett had sufficient opportunity to develop his conspiracy theory by means of “other testimony.” To so state recognizes the relevance and materiality of the conspiracy theory and the need to have evidence regarding it introduced at trial. The majority does not confront the issue of why, if the conspiracy theory was relevant, the trial court limited that defense by excluding highly persuasive written evidence regarding the possible conspiracy, particularly when irrelevant and immaterial portions of the letters dealing with the witness’s sexual behavior could have been redacted and the relevant portions entered into evidence.
If the portions of the letters regarding the complaining witness’s sexual behavior had been redacted, KRE 412 would be inapplicable to the rest of the letters. Through that method, written evidence of the conspiracy and strained relationship between Violett and his step-daughter and her boyfriend, with a greater potential for impact on the jury, could have been admitted without revealing any irrelevant details of the step-daughter’s *778sexual experiences. The goal of KRE 412 could have been achieved in a manner much less damaging to Violett’s ease. The trial court erred in holding that the letters, as a whole, were inadmissible. Violett should not be required to defend himself with one hand tied behind his back.
KRE 412(b)(3) states that “evidence directly relating to the offense charged” is admissible. This rulé should be construed to include the motive of the complaining witness. Thus, if any portions of the letters regarding the sexual relationship between the step-daughter and her boyfriend are inextricably intertwined with the motive statements and are substantiating in nature, those portions are admissible.
Further, the sentence imposed on Violett was calculated incorrectly. Under indictment 92-CR-532, for crimes committed upon his step-daughter, Violett was found guilty of 17 counts of first-degree sexual abuse, for which he was sentenced to five years per count to be served consecutively for a total of 85 years. Under that same indictment he was found guilty of an additional 140 counts of first-degree sexual abuse for which he received a sentence of three years per count, to be served consecutively, for a total of 369 years. Under indictment 92-CR-626, for crimes committed upon his natural daughter, Violett was found guilty of five counts of first-degree rape, for which he received a sentence of sixty years per count to run consecutively for a total under that indictment of 300 years. All the above sentences were run consecutively for a grand total of 754 years.
KRS 532.110(c) provides that when multiple sentences are imposed on a defendant for more than one crime,
The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed.
The “highest class of crime” imposed under the first indictment is a Class D felony (first-degree sexual abuse). The longest extended term authorized by KRS 532.080 for a Class D felony is twenty years, under KRS 532.080(6)(b). Thus, the maximum sentence Violett could receive under indictment 92-CR-532 is twenty years. Trying him under more than one indictment does not magically increase the maximum sentence he can receive under each individual indictment.
Thus, even if the guilt phase is not reversed, Violett’s sentence must be reversed and remanded and the trial court directed to enter a sentence of 320 years — twenty years under indictment 92-CR-532 and three hundred years under indictment 92-CR-626. The fact that Violett’s attorney abandoned this issue at oral argument and that there is little or no practical difference between a sentence of 754 years and 320 years should not blind us to the statutory requirements.
FUQUA, J., joins.
STUMBO, J., joins as to the sentencing issue only.