dissenting.
I must respectfully dissent from that part of the majority opinion which reverses the judgment of conviction. The majority has improperly substituted its view of the evidence for that of the trial judge. The challenged evidence was that of a signature crime nearly identical to the rape involved here; the trial judge properly refused to grant a directed verdict on the burglary charge and admission of the DNA test results was not reversible error.
The trial judge properly admitted evidence of a signature crime, nearly identical to the rape charge here: Prior to the trial, Robey filed a motion in limine to prohibit the Commonwealth from introducing the prior victim’s testimony. During the trial, Robey again objected to the testimony, but the trial judge overruled his objection.
Evidence of other acts of sexual deviance offered to prove the existence of a common scheme or plan must be so similar to the crime on trial as to constitute a so-called signature crime. Billings v. Commonwealth, Ky., 843 S.W.2d 890 (1992); Gray v. Commonwealth, Ky., 843 S.W.2d 895 (1992).
In this case the similarities in the crimes are remarkable. Both victims were awakened from sleep. The assailant was wearing a ski mask and holding a knife to the throat of the victims, the victims were forced to lie on their stomach and raped from behind. The victims both recognized the accused and the accused was wearing a gray ski mask in one instance, and a blue gray ski mask in the other. The victims were told to count to a certain number before they got up, and the crimes occurred on Lucia Avenue and within one block of that street.
The evidence in this case was relevant because the only issue was whether Robey had raped the victim or whether she had consented. The evidence demonstrated that Robey, by committing a similar act at an earlier date, had forced a previous victim to have sexual intercourse. The evidence tended to refute Robey’s claim that the victim in this case had consented and was therefore relevant and probative.
The evidence was not too remote in time. In Diehl v. Commonwealth, Ky., 673 S.W.2d 711 (1984), this Court discussed remoteness and held:
The determination as to whether prior felony convictions are too remote in time to be used to impeach a witness’ testimony rests within the sound discretion of the trial court. We have previously upheld rulings allowing convictions dating from ten to fifteen years before trial to be used for impeachment purposes.
Here the trial judge found that the two crimes were so similar in nature that even if there was a span of 16 years between the two, that they should be allowed into evidence. Robey’s prior conviction was not too remote to be admissible, and there was no abuse of discretion by the trial judge. In determining the admissibility of the evidence, the trial judge properly considered the relevance and balanced the probative value against its prejudicial effect.
The trial judge properly refused to grant a directed verdict on the burglary charge. The evidence presented at trial was that the victim gave Robey the opportunity to come inside the apartment to sleep on the couch. However, Robey declined and said that he would probably spend the night with a friend. The victim placed a pillow and blanket on the couch for Robey. She left the door to the apartment unlocked so Robey could let himself in, should he decide to spend the night there. The victim did not give Robey permission to enter her bedroom or come inside the residence, concealing his identity with a mask, and rape her.
KRS 511.020 states:
*622(1) A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.
When Robey entered the victim’s apartment, he made no effort to sleep on the sofa, which was an element of the limited permission given by the victim. Instead, he wore a disguise and then forcibly raped the victim at knife point. Thus, Robey unlawfully entered the bedroom and remained unlawfully in the victim’s apartment. The trial judge properly denied the motion for a directed verdict on the burglary charge.
It was not error to admit the DNA test results which proved that Robey had had sexual intercourse with the victim. The trial judge determined, without objection, that Warnecke was qualified to testify as an expert and Warnecke extensively discussed the basis of her opinion. Admissibility of DNA evidence is determined on a case-by-case basis. Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995). On appeal, the standard of review is whether in deciding the admissibility of the evidence, the trial judge abused his discretion. Mitchell v. Commonwealth, supra. Upon a careful review of the entire record, the trial judge did not abuse his discretion.
I would affirm the conviction in all respects.
GRAVES, J. joins in this dissent.