RENDERED: APRIL 21, 2023; 10:00 A.M.

NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0247-MR JERRY BEASLEY APPELLANT

APPEAL FROM WOLFE CIRCUIT COURT v. HONORABLE LISA HAYDEN WHISMAN, JUDGE ACTION NO. 20-CR-00016

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.

MCNEILL, JUDGE: On February 7, 2022, Appellant, Jerry Beasley, entered a conditional guilty plea in Wolfe Circuit Court to one count of first-degree sexual abuse involving a victim under twelve years’ of age. Therein, he reserved the right to appeal the court’s order denying his motion to exclude evidence that he exposed his genitals to the victim, and also showed her pornography. After a hearing on the matter, the circuit court denied the motion on the basis that this evidence was admissible pursuant, in part, to KRE1 404(b). In its five-page order the court concluded that: based on the case law cited above, the fact that the uncharged conduct involves the same alleged victim, and it being similar to the nature of the charged conduct, the Court finds that the uncharged acts of prior viewing of alleged pornography and prior exposure of genitals is relevant, probative and not substantially prejudicial.

Beasley was ultimately sentenced to five years’ imprisonment, probated for five years. He now appeals to this court as a matter of right. For the following reasons, we affirm.

STANDARD OF REVIEW KRE 404(b) prohibits the introduction of evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. Such conduct is only admissible “[i]f offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]” Id. The standard of review of an evidentiary ruling is abuse of discretion. The test for an abuse of discretion “is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” This Court will not disturb the trial court’s decision to admit evidence absent an abuse of discretion.

Kentucky Rules of Evidence.

-2- Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (footnotes and citations omitted). With these standards in mind, we now turn to the merits of the present case.

ANALYSIS On June 8, 2020, Jerry Beasley was indicted by a Wolfe County grand jury on one count of first-degree sexual abuse. In the bill of particulars, the Commonwealth set out the acts serving as the basis for the offense as follows: [The victim] alleged that sometime between 2013 and 2016, Beasley 1.) showed her pornography ten to fifteen times; 2.) exposed himself to her four times – once in the basement of his house, twice in the bathroom of his residence, and once in his body shop/garage; and 3.) on one occasion, lifted her shirt and kissed her breasts.

“[P]rior acts committed against the same victim, similar to the conduct on trial, will often if not usually, have relevance other than merely establishing a propensity to commit the crime charged, thus falling within the KRE 404(b) exception.” Gullett v. Commonwealth, 514 S.W.3d 518, 530 (Ky. 2017) (citing Driver v. Commonwealth, 361 S.W.3d 877, 884 (Ky. 2012)). In addition to this general admonition, both parties cite to additional authority in support of their positions. Compare Metcalf v. Commonwealth, 158 S.W.3d 740, 746 (Ky. 2005) (reversing, in part due to the erroneous admission of evidence that defendant

-3- exposed himself and showed pornography to a different victim) with Gilbert v. Commonwealth, 838 S.W.2d 376, 378 (Ky. 1991) (holding that evidence the defendant gave his stepdaughters marijuana and alcohol and forced them to watch sexually explicit movies was part of an “overall scheme” to engage in sexual intercourse with them). Having considered the record and authority advanced by the parties, we believe that the conduct at issue here is admissible pursuant to KRE 404(b). We certainly cannot conclude that the circuit court abused its discretion here.

CONCLUSION For the foregoing reasons, we AFFIRM the circuit court’s order entered on November 16, 2021, and the court’s Judgment and Sentence entered on February 8, 2022.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Darrell A. Herald Daniel Cameron Jackson, Kentucky Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky

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