Hybrid Counsel Limits: Closing Argument Cannot Substitute for Testimony; Separate Victim Counts for Promoting a Sexual Performance by a Minor

Precedents Cited

1) Control of closing argument; hybrid/self-representation is constrained by rules

• Clark v. Commonwealth, 223 S.W.3d 90 (Ky. 2007) (citing Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999)): supplied the abuse-of-discretion definition (“arbitrary, unreasonable, unfair, or unsupported by sound legal principles”) for reviewing limits placed on argument and evidence.
• Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001) and Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987): reinforced that opening/closing are not evidence and that counsel has “great leeway,” framing the boundary question as one of evidentiary tethering.
• Garrett v. Commonwealth, 48 S.W.3d 6 (Ky. 2001): provided the central limitation—closing argument may draw reasonable inferences, but may not argue facts not in evidence or reasonably inferable from evidence. The Court used Garrett to justify barring Taylor’s first-person narrative that introduced new facts.
• Major v. Commonwealth, 275 S.W.3d 706 (Ky. 2009), Faretta v. California, 422 U.S. 806 (1975), and Allen v. Commonwealth, 410 S.W.3d 125 (Ky. 2013): established that self-representation (including hybrid representation) is not absolute and does not excuse compliance with procedural and substantive law. These authorities supported the proposition that hybrid counsel does not create a “testimonial” exception during closing.

2) Waiver of the right to testify; limits on trial-court inquiry

• Woolfolk v. Commonwealth, 339 S.W.3d 411 (Ky. 2011): confirmed the constitutional grounding of the right to testify and the requirement that waiver be knowing and voluntary.
• Watkins v. Commonwealth, 105 S.W.3d 449 (Ky. 2003): was invoked for the narrower requirement—ensure a knowing and voluntary waiver of the right itself, not every strategic consequence of exercising or foregoing it.
• Lynch v. Commonwealth, 642 S.W.3d 647 (Ky. 2022): supplied the “no-inquiry” caution, advising trial courts to avoid direct colloquy about the right to testify unless aware counsel is overriding the defendant’s wish. The Court relied on Lynch to reject Taylor’s proposed “expanded” inquiry tying the decision not to testify to limits on closing argument.
• French v. Commonwealth, 277 S.W. 265 (Ky. 1925), and KRE 611(b): were used to explain the functional reason Taylor could not “testify” in closing—testimony triggers cross-examination rights and credibility testing.

3) Sufficiency and directed verdict standards

• Potts v. Commonwealth, 172 S.W.3d 345 (Ky. 2005) (quoting Jackson v. Virginia, 443 U.S. 307 (1979)): provided the constitutional sufficiency test (“any rational trier of fact” could find the elements beyond a reasonable doubt).
• Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), and Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983): supplied Kentucky’s directed verdict framing—draw all fair inferences for the Commonwealth; directed verdict only when guilt would be “clearly unreasonable,” and more than a “mere scintilla” is required.
• Rogers v. Commonwealth, 315 S.W.3d 303 (Ky. 2010): supported the treatment of circumstantial evidence—need not eliminate every hypothesis except guilt.
• Commonwealth v. Woods, 657 S.W.3d 902 (Ky. 2022): reiterated the appellate role—no reweighing evidence or reassessing credibility.

4) Promoting a sexual performance by a minor (KRS 531.320)

• Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008): supplied the Court’s operative gloss that the statute reaches conduct that “knowingly cause[s], create[s], or bring[s] forth” the “organization or exhibition of any prurient matter involving a minor to an audience.” That interpretation allowed the jury to view Taylor’s alleged provision of sex toys and encouragement/presence as “promoting” a “performance.”

5) Double jeopardy, palpable error, and unit of prosecution

• Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009): supported review of unpreserved double jeopardy claims as palpable error due to manifest injustice concerns.
• Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006): provided Kentucky’s palpable error articulation (“easily perceptible”) and the “substantial possibility” of a different result framing.
• Hourigan v. Commonwealth, 962 S.W.2d 860 (Ky. 1998): recited the three double-jeopardy protections, situating Taylor’s claim as “multiple punishments for the same offense.”
• Blockburger v. United States, 284 U.S. 299 (1932), Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996), and KRS 505.020: supplied the general framework for multiple punishments and same-act analysis.
• Blair v. Commonwealth, 718 S.W.3d 687 (Ky. 2025): was pivotal to the Court’s methodology: when multiple convictions arise under the same statute, courts must determine the legislature’s intended “unit of prosecution.”
• Univ. of Louisville v. Rothstein, 532 S.W.3d 644 (Ky. 2017): guided statutory interpretation by plain meaning to identify the unit of prosecution.

6) CAC forensic interview testimony; bolstering; palpable error

• King v. Commonwealth, 142 S.W.3d 645 (Ky. 2004), and Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999): supplied the abuse-of-discretion framework for evidentiary rulings.
• Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006): refined palpable error’s “manifest injustice” requirement as a probability of a different result or an error so fundamental that it threatens due process.

Legal Reasoning

1) Closing argument limits: advocacy versus unsworn testimony

The Court treated the trial judge’s interventions as classic “scope of argument” control. Taylor, acting with hybrid counsel, repeatedly attempted to narrate events in the first person in a way that went beyond admitted evidence. The trial court sustained objections and explained that closing is not “a time for you to testify,” and must be limited to “what has happened at trial.” Relying on Garrett v. Commonwealth and general principles from Stopher v. Commonwealth, the Court held the restrictions were proper: Taylor remained free to argue credibility, highlight inconsistencies, and draw inferences, but could not inject new facts not subjected to cross-examination.

2) Waiver of the right to testify: valid colloquy; no duty to explain strategic fallout

The Court emphasized the trial court’s on-the-record colloquy confirming Taylor’s understanding of the right to testify and that the decision was his. Taylor stated he did not feel a “compelling need” because “the case is weak.” The Court rejected the claim that the trial judge had to explain that not testifying would limit his ability to narrate facts in closing, holding that the Constitution requires knowledge of the right itself (Watkins v. Commonwealth), not every tactical consequence.

Importantly, the Court also invoked Lynch v. Commonwealth to reinforce that trial courts should generally avoid deeper inquiry into the right to testify absent concern that counsel is overriding the defendant’s wishes; Taylor’s requested expanded inquiry cut against that caution.

3) Directed verdict and A.L.’s age: sufficiency is for rational jurors, not appellate reweighing

Applying Jackson v. Virginia through Potts v. Commonwealth and Kentucky’s directed verdict law in Commonwealth v. Benham, the Court found sufficient evidence for a rational juror to conclude A.L. was under twelve when the abuse occurred. A.L. testified to acts occurring when he was eleven and tied onset to Caitlyn’s repo job (“three months before [he] turned 12”). Inconsistencies were treated as credibility issues for the jury under Commonwealth v. Woods, not as a failure of proof as a matter of law.

4) Promoting a sexual performance by a minor: “performance” and “audience” satisfied by organized exhibition to viewers

For KRS 531.320, the Court adopted the interpretive framework from Clark v. Commonwealth, 267 S.W.3d 668, treating “promoting” as causing/creating/bringing forth an organized exhibition of sexual conduct involving minors to an audience. The children’s testimony—sex toys supplied by Taylor, encouragement/instruction, pornography, and adults/others present—allowed the jury to infer a “performance” and “promotion.” Disputes over whether it “really” was a performance were characterized as weight, not sufficiency.

5) Double jeopardy: the unit of prosecution is victim-based under these facts

Because Taylor challenged multiple convictions under the same statute (KRS 531.320), the Court followed Blair v. Commonwealth and asked what unit of prosecution the legislature intended. Reading KRS 531.320’s language through plain-meaning principles in Univ. of Louisville v. Rothstein, the Court concluded the harm to each child supported a separate count: each child’s directed/encouraged sexual conduct, facilitated by Taylor’s provision of devices and environment, constituted a distinct offense even if occurring in a shared setting.

6) CAC interviewer testimony: methodology is not vouching; no manifest injustice

On the unpreserved claim, the Court applied palpable error standards (RCr 10.26) as elaborated in Martin v. Commonwealth. It found no improper bolstering because the CAC witness described general principles (neutrality, non-leading questions, developmentally appropriate methods) and only stated that the children “made a disclosure,” without detailing content or opining that they were truthful. Given the children’s extensive direct testimony, there was no probability of a different outcome.

Impact

• Hybrid counsel boundary enforcement: The opinion underscores that trial judges may—and should—police the line between argument and testimony when a defendant personally addresses the jury. Even in hybrid representation, closing argument remains constrained by the evidentiary record.
• Right-to-testify colloquies remain limited: By leaning on Lynch v. Commonwealth, the Court signals resistance to expanding colloquies into advisory discussions about trial strategy (e.g., how silence affects closing rhetoric). Trial courts can focus on the core right and voluntariness.
• Victim-based units of prosecution in KRS 531.320 settings: The double jeopardy discussion suggests that when multiple minors are separately induced or directed into sexual conduct—especially where each is a participant—the Commonwealth may charge separate counts tied to each child, even if conduct occurs in one location or episode.
• Forensic interview “process” testimony: The ruling supports the admissibility (and at least the non-palpability) of testimony explaining CAC interview methodology when it does not convey substantive statements or explicitly vouch for truthfulness.

Note: Because the opinion is designated “NOT TO BE PUBLISHED” under RAP 40(D), it is not binding precedent, though it may be cited under RAP 41 in limited circumstances when no published opinion adequately addresses the point of law.