dissenting.
I respectfully dissent.
All three of the movants’ teenage daughters/step-daughters testified that the first *383summer John Gilbert lived with them, both movants “offered” them marijuana and alcohol. They also testified that their stepfather and mother either “allowed” or “forced” them to watch sexually explicit movies and that movants, Arletha and Johnny, engaged in certain sexual acts in their presence. Both movants objected to all of this testimony.
The Court of Appeals decided, and the majority of this Court concurs, that this evidence “reflected part of an overall scheme to aid the stepfather to attain his objective which was to engage in sexual intercourse with his .three stepdaughters.” The majority concludes that “the evidence was not presented to show [a] lustful inclination, but to indicate a pattern of conduct and [a] 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 is a familiar proposition that a defendant in a criminal case should only stand trial for the crime for which he was indicted. Jones v. Commonwealth, Ky., 198 S.W.2d 969 (1947). Each case, in the interest of fair play, should stand on its own. It follows that any exceptions to that rule should be approached with caution and should be strictly limited.
In Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985), the victim’s older sister testified that she had been sexually abused by her father (the defendant-appellant) for a period of six to seven years although there was no actual intercourse. In upholding the admission of such testimony, we said,
“Evidence of independent sexual acts between the accused and persons other than the victim are admissible if such acts are similar to that charged and not too remote in time provided the acts are relevant to prove intent, motive, or a common plan or pattern of activity.” Id., at p. 552.
Thus, tests of admissibility of previous sexual acts are:
1)The acts must be of a sexual nature,
2) The acts must be similar to that charged,
3) They must not be too remote in time,
4) They must be relevant to prove intent, motive, or a plan, or pattern.
In Lantrip v. Commonwealth, Ky., 713 S.W.2d 816 (1986), the appellant was convicted of two counts of rape against his adopted daughter, Amanda. Among the evidence admitted were claims of two female witnesses who testified concerning improper sexual advances made to them by Lantrip, within a period of time fairly close to that of the charged offense. The conduct of the appellant with respect to these two females was not similar to that charged. We reversed and held that it was improper to admit their testimony because it was for the purpose of showing the appellant’s “lustful inclination.” Such evidence, we noted, is improper under Pendleton, supra. We also said, citing Pankey v. Commonwealth, Ky., 485 S.W.2d 513 (1972), that “a defendant is entitled to be tried solely on the question of his guilt of the offense charged in the indictment.” Id, at p. 817.
Recognizing these principles and applying them as exceptions to the general rule in a narrow manner, I believe that the questioned evidence should have been excluded, and that the improper admission thereof was highly prejudicial.
Applying the aforementioned tests to determine the admissibility of previous sexual acts, one can properly ask:
1) Was this evidence of sexual acts between the victim and the accused, or between the accused and persons other than the victim? Clearly the offering of alcohol and marijuana was not a sexual act. Equally clearly, the showing of pornographic movies was not a sexual act. Finally, while the conduct between the movant and his wife was of a sexual nature, it was between husband and wife, and was not between the victims and the accused. Such were not acts of a similar criminal nature, and are clearly *384not within the narrowly construed exceptions set out. This being true, a key element of admissibility is missing, and the evidence should not have been admitted.
2) Were the sexual acts (viz., between husband and wife) relevant to prove intent, motive, plan, or pattern? Based on these acts, it would take a quantum leap of logic to conclude that they were admissible for the purpose of showing that the movants had a plan, or had a pattern of committing such acts with the children. Said conduct was “committed” between the movant and his wife, not with the teenage girls. While the conduct of the movant and his wife, in these circumstances, was totally unacceptable, and obnoxious to the normal person, that fact cannot be used to prove a plan, a motive, or intent. Thus, another element of admissibility was absent, and is but another reason to exclude this highly prejudicial evidence.
I believe the majority has expanded the admissibility of prior acts too far beyond the bounds of the law as it now exists and has ignored the tests of Pendleton and Lantrip, supra. Both movants, John and Arletha Gilbert, were tried with evidence of prior acts which were inadmissible and were highly prejudicial. Their convictions should be reversed, and the case should be remanded to the Warren Circuit Court for a proper retrial.
COMBS and LEIBSON, JJ., join in this dissent.