“Commercial Sexual Activity” Without Monetary Exchange: Kentucky Supreme Court (Unpublished) Affirms Human Trafficking Conviction Based on Obscene Material and Sexually Explicit Performances

“Commercial Sexual Activity” Without Monetary Exchange: Kentucky Supreme Court (Unpublished) Affirms Human Trafficking Conviction Based on Obscene Material and Sexually Explicit Performances

Case: Michelle Bray v. Commonwealth of Kentucky

Court: Supreme Court of Kentucky (Not to be Published)

Date: October 23, 2025

Disposition: Affirmed

Panel: All sitting. Majority by the Court; Conley, J., and Thompson, J., concur in part and dissent in part.

Important notice: This is an unpublished memorandum opinion. Under RAP 40(D), it is not binding precedent and ordinarily may not be cited as such in Kentucky courts, though unpublished Kentucky appellate decisions after January 1, 2003 may be cited for consideration if no published opinion adequately addresses the issue.

Introduction

This unpublished decision addresses the intersection of Kentucky’s human-trafficking statute and child sexual exploitation offenses. Following a jury trial, Michelle Bray was convicted of four counts of complicity to promoting a sexual performance by a minor, three counts of complicity to first-degree criminal abuse, one count of complicity to first-degree sexual abuse, and one count of human trafficking against a vulnerable victim (a minor) in a continuing course of conduct. She received a thirty-year aggregate sentence.

The case arises from years of abuse in Bray’s home involving her boyfriend (pseudonym “Chip”), her nine-year-old daughter (M.B.), and a severely disabled son. The factual record included thousands of images and videos, “trampling” fetish recordings, and explicit depictions of escalating sexual abuse filmed and stored by the boyfriend. After discovery of the material in 2022, Bray and Chip were indicted; Chip pled guilty to 84 counts relating to his own conduct, while Bray proceeded to trial.

On appeal, Bray raised five principal issues:

  • Insufficiency of evidence (directed verdict) on the human trafficking count;
  • Insufficiency of evidence (directed verdict) on complicity to promoting a sexual performance by a minor and complicity to first-degree sexual abuse;
  • Erroneous admission of “other bad acts” under KRE 404(b);
  • Error in refusing lesser-included instructions on third-degree criminal abuse;
  • Prosecutorial misconduct in closing warranting mistrial;
  • Alternatively, cumulative error.

The Supreme Court of Kentucky affirmed on all grounds. Notably, the majority held that “commercial sexual activity” under KRS 529.010(3)(b)–(c) encompasses participation in the production of obscene material and engagement in sexually explicit performances by a minor, and does not require any exchange of value. A joint concurrence/dissent would have reversed the human trafficking conviction on double jeopardy and statutory-interpretation grounds, concluding that “commercial” must entail commerce.

Summary of the Opinion

  • Human trafficking (KRS 529.100): The Court held that the Commonwealth presented more than a scintilla of evidence that Bray intentionally subjected M.B. to “commercial sexual activity” by (a) participating in the production of obscene material and (b) engaging her in sexually explicit performances. The statutory definition does not require proof that anything of value was exchanged or promised. A directed verdict was therefore unwarranted.
  • Complicity to promoting a sexual performance and to sexual abuse: The Court found the videos sufficient to support the elements, including “willful or intentional exhibition of the genitals” even when clothed, and evidence of Bray’s knowledge and intent. Denial of directed verdict was affirmed.
  • KRE 404(b): The trial court did not abuse its discretion in admitting other acts (additional abuse of M.B., animal abuse, text messages) to show intent, knowledge, motive, and to present the complete story of the crimes. The probative value was not substantially outweighed by undue prejudice.
  • Lesser-included instructions (criminal abuse): Because the evidence indicated intentional conduct when Bray stepped on her disabled child, the court properly refused a wantonness-based third-degree criminal abuse instruction.
  • Mistrial for closing argument: The prosecutor’s references to COVID-era shutdowns and Bray’s work schedule were fair comment on the evidence (and on defense theory). No manifest necessity for mistrial.
  • Cumulative error: No individual errors; no cumulative error.

Separate opinion: Justices Conley and Thompson concurred in part and dissented in part. They would have reversed the human trafficking conviction on the view that “commercial sexual activity” must involve some exchange of value and that, absent such proof, the human trafficking count overlapped impermissibly with promoting a sexual performance by a minor, violating double jeopardy under Blockburger and KRS 505.020. They also flagged concerns with a “continuing course of conduct” human-trafficking instruction.

Analysis

1) Precedents and Authorities Cited

  • Directed verdict standard: Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (draw all reasonable inferences for Commonwealth; directed verdict only if it would be clearly unreasonable for a jury to find guilt); Taylor v. Commonwealth, 617 S.W.3d 321 (Ky. 2020) (“more than a mere scintilla”).
  • Statutory interpretation: Beckham v. Bd. of Educ., 873 S.W.2d 575 (Ky. 1994) (courts may not add to or subtract from the legislature’s text).
  • Double jeopardy framework (raised in majority footnote responding to dissent): Kelly v. Commonwealth, 655 S.W.3d 154 (Ky. 2022) (Blockburger focus on statutory elements, not charging facts); Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011) (distinct elements = no double jeopardy).
  • Promoting sexual performance: Little v. Commonwealth, 272 S.W.3d 180 (Ky. 2008); Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008) (an “audience of one” suffices; promotion includes active or passive preparation). The majority also referenced United States v. Knox, 32 F.3d 733 (3d Cir. 1994) for the proposition that exhibition of genitals can be clothed.
  • KRE 404(b) and the Bell test: Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994) (exclusionary rule; balance relevance, probativeness, prejudice). Repeated recognition that similar acts against the same victim are “almost always admissible” to prove material issues: Noel v. Commonwealth, 76 S.W.3d 923 (Ky. 2002); Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016); Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008); Driver v. Commonwealth, 361 S.W.3d 877 (Ky. 2012); Lopez v. Commonwealth, 459 S.W.3d 867 (Ky. 2015). Completeness/res gestae rationale: Webb v. Commonwealth, 387 S.W.3d 319 (Ky. 2012); Commonwealth v. Melton, 670 S.W.3d 861 (Ky. 2023).
  • Mens rea and inferences: Parker v. Commonwealth, 952 S.W.2d 209 (Ky. 1997) (intent inferred from natural consequences); Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky. 2006); Davis v. Commonwealth, 967 S.W.2d 574 (Ky. 1998).
  • Lesser included instructions: RCr 9.54(1); KRS 505.020; Sasser v. Commonwealth, 485 S.W.3d 290 (Ky. 2016); Mash v. Commonwealth, 376 S.W.3d 548 (Ky. 2012); Taylor v. Commonwealth, 671 S.W.3d 36 (Ky. 2023); Hopper v. Evans, 456 U.S. 605 (1982). Standard of review: Sutton v. Commonwealth, 627 S.W.3d 836 (Ky. 2021); Downs v. Commonwealth, 620 S.W.3d 604 (Ky. 2020); Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).
  • Closing argument and mistrial: Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004); Bray v. Commonwealth, 68 S.W.3d 375 (Ky. 2002); Gould v. Charlton Co., Inc., 929 S.W.2d 734 (Ky. 1996); Noakes v. Commonwealth, 354 S.W.3d 116 (Ky. 2011); Dickerson v. Commonwealth, 485 S.W.3d 310 (Ky. 2016); Duncan v. Commonwealth, 322 S.W.3d 81 (Ky. 2010); Commonwealth v. McGorman, 489 S.W.3d 731 (Ky. 2016); Soto v. Commonwealth, 139 S.W.3d 827 (Ky. 2004); Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001); Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987); Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006); Young v. Commonwealth, 25 S.W.3d 66 (Ky. 2000); Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010).
  • Cumulative error: Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010); Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992); Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002).
  • Dissent’s authorities: Blockburger v. United States, 284 U.S. 299 (1932); Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996); KRS 505.020; Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009); Davidson v. American Freightways, Inc., 25 S.W.3d 94 (Ky. 2000); Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016); Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198 (1949); In re Greg H., 542 S.E.2d 919 (W. Va. 2000); United States v. Patton, 451 F.3d 615 (10th Cir. 2006); United States v. Lopez, 514 U.S. 549 (1995); United States v. Gallington, 488 F.2d 637 (8th Cir. 1973); plus a policy critique regarding overcharging and plea dynamics.

2) The Court’s Legal Reasoning

a) Human trafficking: scope of “commercial sexual activity”

The centerpiece of the majority’s decision is a textual reading of KRS 529.100 (human trafficking) together with KRS 529.010(3)’s definition of “commercial sexual activity.” The statute defines that term in three, disjunctive ways:

  • (a) any sex act for which anything of value is given, promised, or received;
  • (b) participation in the production of obscene material (as defined in KRS Chapter 531); or
  • (c) engaging in a sexually explicit performance (as defined in KRS 529.010(15)).

The Commonwealth did not pursue the “exchange-of-value” theory (subsection (a)). Instead, it proceeded under subsections (b) and (c). The majority concluded the Legislature deliberately broadened “commercial sexual activity” to include conduct that, in ordinary parlance, is not transactional. The Court rejected the defendant’s contention that an exchange of value is inherently required, emphasizing that courts may not rewrite statutes to impose extra-textual conditions (citing Beckham). On sufficiency, the Court pointed to videos showing intentional display of genitals, exposure of buttocks, camera angles focused on the child’s crotch/buttocks, and contact with the boyfriend’s clothed penis—all while Bray participated, instructed, and knew filming was occurring. This was “more than a mere scintilla” to overcome a directed verdict request under Benham/Taylor.

Addressing a sua sponte double jeopardy concern raised by the dissent, the majority added that the Blockburger analysis focuses on statutory elements, not proof overlap (citing Kelly). It highlighted distinct mental states and elements between promoting a sexual performance and human trafficking and concluded the two are not the “same offense” (citing Quisenberry).

b) Promoting a sexual performance and sexual abuse: sufficiency

The majority found the four charged videos sufficient to constitute “sexual conduct by a minor” within KRS 531.300, despite clothing, because “willful or intentional exhibition of the genitals” can occur without nudity (relying on Knox for persuasive authority). Bray’s knowledge and intent were inferred from her instruction to M.B., her participation, and admitted understanding of the sexualized “trampling” fetish. The Clark/Little line supported the breadth of “promote” and “performance,” including an “audience of one.”

c) KRE 404(b): other acts admissible for intent, knowledge, plan, completeness

Applying the Bell framework, the Court affirmed admission of:

  • Other abusive videos and sexual images to show sexual motive of the trampling, Bray’s knowledge and intent, and to prove elements of human trafficking and sexual performance offenses;
  • Videos of the child trampling the family cat to demonstrate knowledge (loud screams) and sexual context;
  • Text messages discussing shaving the child’s pubic hair to evidence knowledge, permission, and continued access.

Citing Noel, Jenkins, and Driver, the Court reiterated that similar acts against the same victim are typically “significantly probative” of issues other than propensity. It also leaned on “completeness” or “res gestae” reasoning (Webb; Melton) to avoid fragmenting the narrative. Although prejudicial, the evidence’s probative value was not substantially outweighed by the risk of undue prejudice.

d) Lesser-included (criminal abuse): no evidentiary basis for wantonness

Bray wanted third-degree criminal abuse instructions (a wanton mental state) based on her theory that she stopped when her child showed pain. The Court held the record did not support wantonness: stepping on a non-verbal, severely disabled child, in the context of repeated trampling for sexual gratification, permitted the inference of intent. Under Mash/Taylor, a lesser is warranted only if a jury could rationally acquit on the greater yet convict on the lesser; that threshold was not met.

e) Mistrial/closing argument: fair comment and no manifest necessity

Bray claimed prosecutorial misconduct when the Commonwealth argued that COVID-era closures undercut her “I was at work” theory. The Court noted that argument is not evidence; counsel may draw reasonable inferences and attack the credibility of defense positions (Slaughter; Brewer; Padgett). Given the record (including Bray’s own statements about her limited work schedule and the defense’s failure to introduce work records), the prosecutor’s comments were within “wide latitude.” No “manifest necessity” justified a mistrial (Woodard; Gould).

f) Cumulative error: none

Because no individual error was found, cumulative error necessarily failed (Brown).

3) The Concurrence/Dissent: Commerce, Double Jeopardy, and Statutory Fit

Justices Conley and Thompson would affirm all convictions except human trafficking. Their key points:

  • “Commercial sexual activity” must be commercial: They argue that reading KRS 529.010(3)(b)–(c) to include wholly non-transactional conduct distorts the ordinary and legal meaning of “commerce,” creates overlap with KRS Chapter 531 (pornography/sexual performance), and risks arbitrary enforcement (citing Jenkins; In re Greg H.; Lawson v. Suwannee).
  • Double jeopardy: Without an exchange-of-value element, the human trafficking count duplicates the promoting-a-sexual-performance counts for the same conduct; under Blockburger/Burge and KRS 505.020, one offense must require proof the other does not. As charged and instructed, they contend, the elements overlapped.
  • Instructional concern: They also flagged that a “continuing course of conduct” is not part of KRS 529.100; inserting that concept risks compounding KRS 505.020 issues.
  • Policy and charging incentives: The dissent warns of overcharging—using a Class A human trafficking count where non-commercial exploitation is already criminalized at lower felony grades—potentially coercing pleas (citing Gallington and scholarship on plea bargaining dynamics).

4) Impact and Practical Consequences

Although unpublished and non-binding, this decision is a significant data point in Kentucky’s ongoing struggle to define the outer boundaries of human-trafficking prosecutions involving minors and recorded exploitation.

  • Charging latitude for prosecutors: The majority’s textual approach confirms that, under current statutory language, the Commonwealth may seek human trafficking convictions for conduct involving production of obscene material and/or sexually explicit performances by minors even without any monetary exchange. Expect prosecutors to plead human trafficking alongside promoting/possession offenses in child exploitation cases where images or videos are created.
  • Defense strategies: The dissent highlights a live double jeopardy controversy. Defendants can be expected to raise Blockburger/KRS 505.020 challenges—especially where the human trafficking count is anchored solely in “sexually explicit performance” and indistinguishable from “sexual performance” counts, and where instructions do not clearly cabin the distinct elements or mental states.
  • Legislative clarification pressure: The Court’s explicit recognition that subsections (b) and (c) are “inherently non-commercial” may spark calls for the General Assembly to recalibrate definitions in KRS 529.010 to better align “commercial sexual activity” with either (i) transactional exploitation, or (ii) a clarified policy choice that “commercial” is a term of art embracing production and performance irrespective of payment. That choice carries downstream consequences for grading, cumulative punishments, and double jeopardy analysis.
  • Jury instruction hygiene: The dissent’s “continuing course of conduct” critique is a cautionary tale. Trial courts should ensure instructions track statutory elements precisely and avoid inserting non-textual phrases that could complicate KRS 505.020 analysis.
  • KRE 404(b) in child exploitation: The Court again emphasizes that similar acts against the same victim are usually highly probative of material issues like knowledge, motive, plan, and identity. This will continue to support broad admission of surrounding context in prosecutions of prolonged sexual exploitation.
  • Clothed “exhibition” and “audience of one” doctrines: The majority’s reliance on Knox and Clark keeps Kentucky aligned with federal and Kentucky precedents expanding the reach of “exhibition” (even when clothed) and “performance” (even for an audience of one) in sexual-exploitation cases.

Complex Concepts Simplified

  • Directed verdict (criminal cases): A defendant is entitled to a directed verdict only if, viewing the evidence in the light most favorable to the Commonwealth, no reasonable juror could find guilt beyond a reasonable doubt. “More than a mere scintilla” of evidence defeats such a motion.
  • Human trafficking vs. promoting a sexual performance:
    • Human trafficking (KRS 529.100): For minors, it includes intentionally subjecting a person to “commercial sexual activity,” which the statute defines to include producing obscene material or engaging in a sexually explicit performance—without requiring proof of payment.
    • Promoting a sexual performance (KRS 531.320): Knowing the character and content, producing/directing/promoting any visual performance that includes “sexual conduct by a minor.” “Performance” can be a video for an audience of one; exhibition of genitals can be clothed.
  • KRE 404(b) (other bad acts): Generally excludes propensity evidence but allows other-acts evidence for non-propensity purposes (e.g., motive, intent, knowledge) and when “inextricably intertwined” with the charged conduct. Courts must balance probative value against undue prejudice.
  • “Res gestae” or completeness: The Commonwealth may introduce surrounding events to present the full story of the crime and avoid misleading fragmentation.
  • Mens rea: “Intentional” means acting with conscious objective to cause a result; “wanton” means awareness of and conscious disregard of a substantial and unjustifiable risk. Lesser-included instructions require a rational basis in the evidence for the lesser mental state.
  • Double jeopardy (Blockburger/KRS 505.020): Two convictions for the same conduct are permissible if each offense contains an element the other does not. Courts look to statutory elements, not simply the overlap in proof. The dissent argues that, as charged and instructed, the human trafficking count collapsed into the promoting counts; the majority says the statutes’ different elements and mental states keep them distinct.
  • Closing argument boundaries: Lawyers may argue reasonable inferences from the evidence and challenge the credibility of opposing theories. Argument is not evidence; mistrial is reserved for fundamental defects causing incurable prejudice.

Conclusion

This unpublished decision underscores an important—and contested—interpretation of Kentucky’s human-trafficking statute: “commercial sexual activity” may be established through the production of obscene material or sexually explicit performances by a minor without proof of any exchange of value. The Court’s textual approach gives prosecutors broad latitude to charge human trafficking in child exploitation cases involving filming and directed performances, while the concurrence/dissent warns that such breadth risks double jeopardy overlap with promoting-a-sexual-performance offenses and misaligns with ordinary understandings of “commerce.”

Beyond that core controversy, the opinion offers practice guidance familiar to Kentucky criminal law:

  • “Exhibition” can be clothed and “performance” can be for an audience of one;
  • Other-acts evidence against the same victim often clears KRE 404(b) balancing when tied to knowledge, intent, motive, plan, or completeness;
  • Courts will resist lesser-included instructions lacking an evidentiary foothold in a different mental state;
  • Closing-argument latitude is wide, and mistrials remain an extreme remedy.

As a non-precedential memorandum, Bray cannot be cited as binding authority. Still, its reasoning—coupled with a robust dissent—signals live issues that may invite legislative clarification or future published decisions: the fit between “commercial sexual activity” and non-transactional child exploitation, careful drafting of jury instructions, and the boundaries of cumulative punishment under KRS 505.020. For now, the case stands as a potent illustration of how Kentucky’s trafficking and sexual-exploitation statutes can operate in tandem—and the constitutional and policy debates that can follow.

Case Details

Year: 2025
Court: Supreme Court of Kentucky

Judge(s)

Comments