“The Reach of Waiver” – How Express Agreement Forecloses Appellate Review in Kentucky:
A Structured Commentary on Kenny Dile, Jr. v. Commonwealth of Kentucky (Ky. Sup. Ct., Aug. 14 2025)

1. Introduction

This memorandum opinion by the Supreme Court of Kentucky (“the Court”) arises from the horrific sexual-abuse prosecution of Kenny Dile, Jr. The Taylor Circuit Court jury convicted Dile of incest, first-degree sodomy, first-degree unlawful transaction with a minor, and multiple counts of first-degree sexual abuse, fixing an aggregate sentence of fifty-nine years.

On direct appeal Dile attacked (i) evidentiary rulings—particularly his mother’s impeachment, KRE 404(b) “other acts,” and Detective testimony; (ii) denial of directed-verdict motions; (iii) jury instructions (double-jeopardy and “continuing-course” counts); (iv) denial of a mistrial; and (v) admission of a victim-impact statement. The Court affirmed in full, finding most issues waived or otherwise harmless.

2. Summary of the Judgment

• Waiver/Invited Error Dominates: Where defense counsel explicitly assented to jury instructions or evidentiary use, the Court deemed later appellate attack waived, not merely unpreserved, foreclosing even palpable-error review.
• Directed-Verdict Standards Reaffirmed: The Court reiterated that “more than a scintilla” of evidence defeats a directed-verdict motion (Benham standard) and held proof of “forcible compulsion” and “inducement” sufficient.
• Impeachment Misstep Harmless: Although the prosecutor failed to lay perfect KRE 613 foundations for two text messages, the technical error was harmless.
• KRE 404(b) Admissibility: Similar sexual acts against the same child victim in another county were “inextricably intertwined” and “almost always admissible.”
• No Mistrial Needed: A fleeting, likely unheard reference to defendant’s father did not create “manifest necessity.”
• No Fifth-Amendment Violation: Detective’s statement that counsel advised Dile not to speak did not reference any compelled silence.
• Victim-Impact Statement: Permitting a sibling to speak at sentencing fit KRS 421.500’s discretionary scope.

3. Analysis

A. Precedents Cited and Their Influence

• Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020) – Established meticulous preservation requirements for directed-verdict arguments. The Court used Ray to declare Dile’s motions unpreserved.
• Leger v. Commonwealth, 400 S.W.3d 745 (Ky. 2013) & Hayes – Emphasized need for further relief requests after an objection is sustained; drove “unpreserved” conclusion on mother’s testimony.
• Benham (1991) – Core directed-verdict lens; Court held evidence sufficient for sodomy and unlawful transaction counts.
• Combs (2006) – Defined “induce” and “active participation” for unlawful transaction with a minor; key to affirming that count.
• Harp, Jenkins, Howard – String of cases allowing evidence of similar sexual acts against the same victim; justified KRE 404(b) admission.
• Baumia (2013) – Distinguished inadmissible silence arising from “official compulsion”; used to uphold Detective Ford’s testimony.
• Sexton, Quisenberry, Webster – Clarify waiver vs. mere lack of objection; cemented bar to instruction-based appeal.

B. Legal Reasoning of the Court

1. Mother’s Testimony & Texts
   – Court found prosecutor’s ultimate-issue question improper but objection was sustained; no request for admonition => no preservation.
   – KRE 613 foundation mis-laid; still harmless because context explained.
   – Remaining texts freely admissible; defense invited their use.
2. Directed Verdicts
   – Motions lacked specificity (Ray), thus only palpable-error review.
   – Sodomy: Evidence of repeated pleas to stop and physical resistance = “forcible compulsion.”
   – Unlawful transaction: Minor’s “consent” (non-legal) plus defendant’s inducement satisfied statute.
3. Jury Instructions
   – Express courtroom agreement with instructions was “knowing relinquishment,” waiving error—including alleged double-jeopardy overlap and “continuing-course” overlap.
4. Mistrial Motion
   – Single, likely unheard comment about father did not create “manifest necessity.” Court emphasized jury perception, not counsel sensitivity.
5. Fifth-Amendment/Silence Issue
   – No official compulsion; detective merely reported counsel’s instruction.
   – Even if error, isolated remark not “shocking.”
6. KRE 404(b) Evidence
   – Same victim; pattern necessary to explain relationship; “extrinsic acts” rule favors admissibility where intertwined.
7. Victim-Impact Statement
   – Statute expressly allows siblings of minor victims or trial-court-designated persons to speak. Court also relied on Sherroan recognizing broader discretion.
8. Cumulative Error
   – Only one harmless KRE 613 lapse; no cumulative prejudice.

C. Impact of the Decision

Although designated “Not to be Published” (RAP 40(D)), the opinion is still citable if no published authority “adequately addresses” an issue. Its practical weight lies in:

• Re-affirming Waiver Doctrine: The Court underscores that an affirmative nod—or silence in the face of a judge’s summary—bars later complaint. Defense counsel must preserve with precision.
• Clarifying Directed-Verdict Preservation: Trial lawyers are again warned: identify each element you claim unproved or lose the argument.
• Encouraging Full Relationship Evidence in CSA Cases: The ruling continues a permissive trend for prosecutors to bring in prior abuse of the same child victim.
• Limited Fifth-Amendment Protection Pre-Arrest: Merely refusing a detective’s phone request—without custody—does not create a constitutional bar to mentioning that refusal.

4. Complex Concepts Simplified

• Waiver vs. Unpreserved Error: “Unpreserved” means no objection was made; appellate courts may still grant relief via “palpable error.” “Waiver/Invited error” means the party actively agreed or induced the situation—no review at all.
• Directed Verdict: A trial judge’s ruling that evidence is so lacking no reasonable jury could convict. If denied, appellate courts ask whether conviction was “clearly unreasonable.”
• Forcible Compulsion: Any force or threat that makes a victim fear harm—no physical injury required; subjective viewpoint of victim controls.
• KRE 404(b): General bar on “other bad acts” just to show defendant is a bad person. Exceptions: proving motive, intent, pattern, or where acts are intertwined with charged crime.
• KRE 613 Foundation: Before confronting a witness with a prior inconsistent statement, counsel must state time, place, persons present, and show the writing.
• “Continuing Course of Conduct” Count: Kentucky permits charging a series of identical child-sex-abuse acts as one count if timeframe is specified and jury unanimity assured that two or more acts occurred.

5. Conclusion

Kenny Dile, Jr. v. Commonwealth offers a forceful reminder that appellate success begins at the trial table. By expressly agreeing to jury instructions and evidentiary uses, the defense extinguished nearly every avenue for review. The Court also reaffirmed liberal admission of prior-act evidence involving the same child victim and the exacting—but not impossible—requirements to overturn sexual-abuse verdicts on directed-verdict grounds. While unpublished, the opinion will likely be cited where no published case as clearly demonstrates how waiver nullifies alleged trial errors. Prosecutors gain confirmation that 404(b) history with the same child almost invariably comes in; defense lawyers receive a cautionary tale on the price of silence—or worse, explicit assent—at critical moments.