Affirmative Approval Equals Waiver: Kentucky Supreme Court Re-affirms that Explicit Agreement to Jury Instructions Waives Double-Jeopardy and Jury-Unanimity Claims

Introduction

Michael Dodson, the appellant, was convicted in Grayson Circuit Court of first-degree rape, first-degree sodomy, and first-degree sexual abuse of a child under twelve, and he received a life sentence. On direct appeal he argued that (i) the jury instructions violated the constitutional requirements of jury unanimity and protection from double jeopardy, and (ii) certain hearsay statements embedded in the child-victim’s medical records were erroneously admitted. The Kentucky Supreme Court, in an unpublished memorandum opinion, unanimously affirmed the convictions.

Although unpublished and therefore non-precedential under RAP 40(D), the Court’s opinion is nevertheless notable because it consolidates and clarifies a growing line of Kentucky authority holding that an explicit, on-the-record statement of agreement with proposed jury instructions constitutes an “invited error” and thereby waives subsequent challenges not only to ordinary instructional defects but also to double-jeopardy and jury-unanimity violations—constitutional protections often perceived as non-waivable. The Court further confirmed that erroneously admitted medical-treatment hearsay identifying a perpetrator is harmless where the same information is supplied by the victim’s live testimony and other evidence.

Summary of the Judgment

Waiver / Invited Error: Defense counsel told the trial judge, “the defense is okay with these instructions, Judge.” Relying on Sanchez v. Commonwealth (2023) and Boggs v. Commonwealth (2025), the Court held that such affirmative approval invites error and therefore waives appellate review of both unanimity and double-jeopardy claims.
Hearsay in Medical Records: Assuming—without deciding—that some contents of the child’s certified medical records were inadmissible hearsay (specifically the identification of Dodson as the abuser), the Court held the error harmless because that information was cumulative of the child’s in-court testimony and of a defense-introduced forensic interview.
Disposition: All justices concurred; convictions and sentence affirmed.

Analysis

Precedents Cited

The Court relied primarily on three categories of precedent:

Kentucky Waiver / Invited Error Cases
- Sanchez v. Commonwealth, 680 S.W.3d 911 (Ky. 2023) – express agreement to instructions waived later challenge.
- Boggs v. Commonwealth, --- S.W.3d --- (Ky. 2025), 2025 WL 1717814 – plurality, but a controlling five-vote result that extended invited-error waiver to double-jeopardy and unanimity challenges.
- Couch v. Maricle, 998 S.W.2d 469 (Ky. 1999) – recognized personal nature of double-jeopardy defense and its potential waiver.
- Kiper v. Commonwealth, 399 S.W.3d 736 (Ky. 2012) – distinguished mere failure to object from affirmative invitation.
Federal Authority
- Jeffers v. United States, 432 U.S. 137 (1977) & Menna v. New York, 423 U.S. 61 (1975) – U.S. Supreme Court acknowledgment that double-jeopardy rights may be waived.
- United States v. Newton, 327 F.3d 17 (1st Cir. 2003) – double-jeopardy protection as a personal defense subject to waiver.
Hearsay / Harmless Error Cases
- Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011) – medical-treatment hearsay exception (KRE 803(4)).
- Colvard v. Commonwealth, 309 S.W.3d 239 (Ky. 2010) – identification of perpetrator usually not admissible under medical-treatment exception.
- Torrence v. Commonwealth, 269 S.W.3d 842 (Ky. 2008); Combs v. Commonwealth, 965 S.W.2d 161 (Ky. 1998); Wells v. Commonwealth, 206 S.W.3d 332 (Ky. 2006) – cumulative-evidence harmless-error doctrine.

Legal Reasoning

Invited Error Doctrine.
The Court drew a sharp distinction between (a) silence or failure to object and (b) an affirmative statement of approval. The latter converts ordinary “unpreserved error” into “invited error,” which is not reviewable—even under palpable-error (RCr 10.26) or manifest-injustice standards—because the defendant “cannot profit from his own wrong.”

Applying that doctrine, Dodson’s counsel’s statement that the defense was “okay” with the instructions waived:
- the jury-unanimity argument that the three counts could be based on a single act, and
- the double-jeopardy argument that the same single act might support multiple convictions.
By reaffirming Boggs and Sanchez, the Court solidified that even constitutional guarantees can be surrendered by deliberate tactical choice.
Harmless Error & Cumulative Evidence.
On the hearsay issue, the Court assumed (without deciding) that portions of the medical records were inadmissible (identifying Dodson as abuser). However, because J.T. testified live, and because the defense itself played the forensic interview repeating the same allegations, the records were “merely cumulative.” Under Torrence and its progeny, admission of cumulative evidence, even if erroneous, is harmless beyond a reasonable doubt.

Impact of the Decision

Though unpublished, the opinion’s reasoning will inevitably influence trial practice and appellate strategy in Kentucky:

Heightened Risk in “Agreeing” to Instructions: Defense counsel must now treat on-the-record assent as a complete bar to later constitutional challenges. Preservation must be achieved by either proposing alternative instructions or lodging specific objections.
Streamlining of Appellate Dockets: The decision discourages defendants from raising waived instructional claims, potentially reducing duplicative appeals.
Continued Clarification on Hearsay Redaction: Prosecutors and trial courts are reminded to redact perpetrator identification from medical records. Failure to do so may be harmless in some cases, but safer practice is to excise it.
National Persuasive Authority: By citing several other state courts, Kentucky adds to a multi-jurisdictional trend embracing the doctrine that double-jeopardy protections can be forfeited.

Complex Concepts Simplified

Jury-Unanimity Requirement: In Kentucky felony trials, all 12 jurors must agree which specific act constituted the crime when multiple acts are alleged. Failure to tailor instructions can create “unanimity error.”
Double Jeopardy: A constitutional protection preventing multiple prosecutions or punishments for the “same offense.” When one act supports multiple counts, the doctrine may bar redundant convictions.
Invited Error vs. Unpreserved Error: “Unpreserved error” occurs when counsel simply fails to object; courts may still review for “palpable error.” “Invited error” arises when counsel affirmatively joins or induces the action complained of, extinguishing review altogether.
Hearsay & Medical-Treatment Exception (KRE 803(4)): Statements made for purposes of medical diagnosis/treatment (e.g., “my stomach hurts because I swallowed a coin”) are admissible despite being hearsay. Identification of an assailant generally isn’t included unless relevant to treatment.
Cumulative Evidence / Harmless Error: Evidence is cumulative when it repeats information already properly admitted. Erroneous admission of such evidence is considered harmless because it likely had little effect on the verdict.

Conclusion

Michael Dodson v. Commonwealth reinforces a crucial, practical lesson: an express, on-the-record statement of approval forfeits future attacks on jury instructions, even those rooted in fundamental constitutional protections like double jeopardy and jury unanimity.

By coupling this waiver holding with a succinct harmless-error analysis of hearsay, the Court signals its intolerance for tactical gamesmanship—parties may not sit silently (or affirmatively consent) at trial and later claim reversible error on the very point they endorsed. For litigators, the opinion is a vivid reminder that objection practice is not mere formality; it is the procedural lifeline of appellate rights. Although unpublished, the reasoning dovetails with—and bolsters—existing published precedent, ensuring it will be cited persuasively wherever waiver doctrine is debated.