dissenting:
With all due respect to the majority, I cannot imagine a more prejudicial joinder of offenses for trial than in this case. Therefore, I must respectfully dissent.
The alleged victim of the first rape, Karen, and the Appellant were both 17-year-olds working at Burger King. The evidence related that she voluntarily gave him a *91ride home on the evening of the incident. Instead of going to his house, she voluntarily drove the Appellant to a parking lot some distance from his home, even though her mother had instructed her to come straight home after taking the Appellant home.
The victim then testified that when she stopped the car in a parking lot a distance from any nearby building, the motor was cut off and he grabbed the keys from the ignition. According to the victim, he then grabbed her by the hair, pulled her over into the passenger side, unbuckled and pulled down his pants with one hand, and had sex with her against her will. There is no evidence of any resistance on behalf of the victim by way of scratches or bruises to her face or that of the Appellant. In fact, the victim admitted not offering any physical resistance. She simply said she “froze.” The victim insisted in her testimony that she was unafraid and never felt threatened, even by the Appellant’s initial advances in the ear. The victim is not a small person. Neither is the Appellant particularly big. Although the victim denied any romantic involvement with the Appellant, one co-worker testified that he had previously seen the two of them in the drive-through of the Burger King together. Prior to the alleged rape, they were sitting close together and either kissing or whispering into each other’s ears.
With upmost respect to the victim of this case, it is obvious that the prosecution of this charge by itself would be problematic. It is a “he said-she said” encounter between 17-year-olds in the victim’s mother’s car. The details of this alleged forcible sexual act — considering all the circumstances — are implausible. This is not to mention the evidence of the two being seen in a close physical encounter in a car previous to the alleged sexual assault.
However, when much more plausible evidence of the second sexual assault on Jennifer in her living room ten days later is introduced, all doubts about the guilt of the Appellant in the first encounter with the 17-year-old coworker disappear. Add to this the highly aggravating evidence of the Appellant threatening the victim of the second rape a few days after the assault. The jury heard that two days after the second rape, the Appellant brought several friends to the victim’s home and threatened her if she reported the rape. It scared the victim so bad that she went and lived with a friend.
None of this damning evidence, nor the charges of trespass and intimidating a witness in a legal proceeding, would have come into evidence in the trial of the first rape alone. It is important to point out in passing that there were actually three additional charges attending to the second rape. The Appellant was charged with intimidating a participant in a legal proceeding, second-degree burglary, and unlawful imprisonment. Either the judge directed a verdict or the jury found the Appellant not guilty of the latter two. All of this piling on as to the second rape only adds to the prejudice of trying the rape charges together. It is significant to point out that even with the highly prejudicial trial for the various charges jointly, the jury was unable to reach a verdict in the first trial and a mistrial had to be declared.
We seem to ignore in this case a very important provision of RCr 9.16 which says “[i]f it appears that a defendant ... will be prejudiced by a joinder of offenses ... for trial, the court shall order separate trials of counts ... or provide whatever other relief justice requires.” (Emphasis added.)
Here, we have two separate rape charges, intimidating a witness in a legal proceeding, and trespass separated by ten *92days and varying circumstances all tried together. Given the fact that it took the jury two trials to convict the Appellant with the charges being joined, it is highly likely that the Appellant would not have been convicted of the first rape had the charges been tried separately.
I, therefore, must dissent and would reverse and remand for a new trial.
VENTERS, J., joins.