Joinder, Rape-Shield Limits, Child Witness Confrontation, and Course-of-Conduct Double Jeopardy in Watts v. Commonwealth (Ky. 2025)

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I. Introduction

The Kentucky Supreme Court’s memorandum opinion in James Edward Watts v. Commonwealth of Kentucky, 2024-SC-0487-MR (rendered Dec. 18, 2025), affirms the life sentence of James Edward “Bubba” Watts for first-degree sodomy (victim under twelve), first-degree sexual abuse (victim under twelve), and first-degree indecent exposure. The convictions all arise from sexual acts against a six–seven year-old child, A.D., while Watts was living in the same household and serving as a caretaker.

The opinion is expressly designated “NOT TO BE PUBLISHED” under Kentucky Rule of Appellate Procedure (RAP) 40(D). It therefore:

• Has no binding precedential effect in Kentucky courts; and
• May be cited only as an unpublished decision (with a full copy attached) and only when no published opinion addresses the issue adequately.

Despite its non-precedential status, the opinion is analytically rich. It synthesizes and applies multiple strands of Kentucky criminal procedure and evidence doctrine, particularly in the sensitive context of intra-family child sexual abuse:

• Joinder and severance of co-defendants in a “single household” abuse setting;
• The interaction of the rape-shield rule (KRE 412) with asserted “patterns” of prior false allegations against other men;
• Use of home/YouTube videos under KRE 404(b) to show opportunity and authority rather than propensity;
• The Confrontation Clause and Kentucky’s “face-to-face” provision when:
  • a co-defendant’s statement is used at joint trial; and
  • child witnesses testify seated with their backs to the defendants, but facing the jury;
• Statutory double jeopardy under KRS 505.020(1)(c) where indecent exposure and sodomy occur in a single incident.

This commentary provides a detailed analysis of the opinion, including its doctrinal foundations, reasoning, and likely persuasive impact in Kentucky criminal practice.

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II. Case Background

Sarah (a pseudonym) married James Lewis Watts in 2015 and lived with her three minor children—G.T. (boy), A.D. (girl), and M.D. (girl)—in Mayfield, Kentucky. Around 2018, James Lewis’s brother, James Edward “Bubba” Watts (the appellant here), moved into the home, as did their mother and her boyfriend. Sarah and James Lewis worked outside the home; Watts primarily stayed with the children, did not drive, and was mostly unemployed.

The alleged abuse occurred between January and August 2017, when the children were approximately:

• G.T. – 9 years old
• A.D. – 6–7 years old
• M.D. – 5–6 years old

Key chronological points:

• March 2017: CHFS and law enforcement investigate allegations involving A.D. and Watts; CHFS deems these unsubstantiated.
• Late 2017–early 2018: Sarah and James Lewis separate; Sarah moves out with children; G.T. moves to his father; A.D. & M.D. move to Georgia to live with an aunt; the couple later divorces.
• Fall 2020: A new report alleges sexual abuse by both James Lewis (against all three children) and Watts (against G.T. and A.D.). Forensic interviews follow, leading to indictments.

The final superseding indictment charged Watts with:

• Three counts of first-degree sodomy, victim under 12;
• Three counts of first-degree sexual abuse, victim under 12; and
• One count of first-degree indecent exposure.

At the joint trial of both brothers:

• All three children testified to multiple incidents of sexual abuse by James Lewis and to several incidents by Watts;
• The jury acquitted Watts of all charges involving G.T.;
• The jury convicted Watts of:
  • First-degree sodomy (oral sex) against A.D., under age 12;
  • First-degree sexual abuse (genital touching) of A.D., under age 12;
  • First-degree indecent exposure (exposing his genitals to A.D. before the oral sex incident).

The trial court imposed a life sentence in accordance with the jury’s recommendation. Watts appealed as a matter of right under Section 110(2)(b) of the Kentucky Constitution.

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III. Summary of the Supreme Court’s Decision

The Kentucky Supreme Court affirmed the convictions and sentence. It rejected each of Watts’ five appellate claims:

1. Improper joinder / denial of severance: The joint trial of Watts and his brother was lawful under RCr 6.20 and 9.12; there was a sufficient “series of acts” nexus, and Watts failed to demonstrate actual, undue prejudice.
2. Exclusion of “pattern” evidence of prior false allegations: Evidence that Sarah purportedly had a history of making false abuse allegations against other men was barred by KRE 412 (rape-shield) because the prior allegations were not “demonstrably false,” and in any event was excludable under KRE 403 for confusion of issues.
3. Admission of YouTube videos: Two brief videos from Watts’ YouTube channel depicting playful interactions with G.T. were admissible under KRE 404(b) as evidence of opportunity and authority; their probative value was not substantially outweighed by unfair prejudice.
4. Confrontation Clause claims:
   • Co-defendant’s statement: Admission of a brief, carefully redacted snippet of James Lewis’s police interview (“No, I honestly don’t know” why the children would accuse him) did not incriminate Watts and thus posed no Sixth Amendment or Section 11 violation.
   • Courtroom configuration: Seating the child witnesses at a table facing the jury, with their backs to the defendants, did not violate federal or state confrontation rights given the need for the jury to see the witnesses clearly and the continued physical presence of the defendants.
5. Statutory double jeopardy (KRS 505.020): Convictions for both indecent exposure and sodomy arising from the same incident were permissible because the statutes target separate, discrete acts, and the facts showed two distinct, sequential offenses rather than a single “continuing course of conduct.”

Justice Thompson dissented without opinion. No separate rationale is provided; the majority opinion therefore controls the court’s disposition but does not bind as precedent due to its unpublished status.

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IV. Detailed Analysis

A. Joinder of Co‑Defendants and Denial of Severance

1. Legal Framework

Kentucky law expresses a “long-recognized preference” for joint trials of defendants who could have been jointly indicted, emphasizing judicial economy and consistent verdicts. Key rules and precedents include:

• RCr 6.20 – Joinder of defendants:

  Two (2) or more defendants may be charged in the same indictment … if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses…

• RCr 9.12 – Joinder of prosecutions:

  The court may order two (2) or more indictments … to be tried together if the offenses, and the defendants, if more than one (1), could have been joined in a single indictment…

• RCr 8.31 – Relief from prejudicial joinder:

  If it appears that a defendant … is or will be prejudiced by a joinder … the court shall order separate trials … or provide whatever other relief justice requires.

• Standard of review: Denial of severance is reviewed for abuse of discretion. The appellant bears the burden of showing that joinder was actually and unduly prejudicial. See:
  • Peacher v. Commonwealth, 391 S.W.3d 821 (Ky. 2013);
  • Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011);
  • Elam v. Commonwealth, 500 S.W.3d 818 (Ky. 2016);
  • Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).

In Peacher, the court stressed that the “required nexus” for joinder is not just temporal/spatial proximity but a logical relationship—e.g., arising from a common scheme or plan, or “in the course of a single act or transaction, or … as parts of a common scheme or plan.”

Even where joinder is technically proper, relief must be granted under RCr 8.31 if the undue prejudice (prejudice beyond what is inherent in any joint trial) is so obvious that refusal to sever is a clear abuse of discretion.

2. Application to Watts

Watts argued that joinder with his brother James Lewis was improper because:

• Their alleged acts did not overlap; no joint participation; no complicity charged.
• The indictments were separate, and his indictment did not even mention James Lewis.
• He contended that they did not “participate in the same acts or transactions” as required by RCr 6.20.

The Court rejected this narrow view, holding that—although the brothers did not commit the same individual acts—they were involved in the “same series of acts” in the sense contemplated by RCr 6.20 and Peacher:

• Both allegedly abused children in the same household, during the same timeframe, against overlapping victims (G.T. and A.D.), under the same familial structure.
• The nature of the sexual acts was strikingly similar (forced oral sex, anal penetration of G.T. by each brother, genital rubbing, and threats to prevent disclosure).
• The Commonwealth’s theory was that they functioned in tandem, creating opportunities and a permissive environment for each other’s abuse, i.e., a common scheme.

This, the Court held, satisfied the “series of acts” requirement and made joint trial both permissible and practically sensible, especially given the extensive overlap in evidence and the desire to avoid requiring child victims to testify in multiple trials.

3. Alleged Prejudice: Similar Names, Extra Victim, and Statement to Police

Watts claimed three main sources of prejudice:

1. Similarity of Names: Both defendants were named “James Watts” (James Lewis Watts and James Edward “Bubba” Watts), allegedly risking jury confusion.
2. Extra Victim (M.D.): Evidence of abuse of M.D. by James Lewis was irrelevant to Watts and would unfairly taint him.
3. James Lewis’s Police Statement: A redacted snippet (“No, I honestly don’t know” why the children would accuse him) allegedly bolstered the children’s credibility in a way that prejudiced Watts, who could not cross-examine James Lewis (who did not testify).

The Court was unpersuaded and emphasized specific steps taken to minimize confusion:

• Use of distinct labels: “Bubba” for Watts, “James” for his brother (matching how the children knew them).
• Nameplates at counsel table with full names visible.
• Physical separation at the defense table: two attorneys between the defendants.
• Consistent seating and distinct clothing: Watts always wore a white shirt and black tie; James Lewis wore blue or gray, no tie.

Most tellingly, the jury distinguished the defendants in its verdict:

• It acquitted Watts on all charges involving G.T.;
• It acquitted James Lewis on some (but not all) allegations involving G.T., even while convicting him on others.

This selectivity strongly undercut any claim that the jury conflated the defendants or “lumped” the evidence.

Regarding the extra victim (M.D.), the Court applied the mutual admissibility test drawn from Roark v. Commonwealth, 90 S.W.3d 24 (Ky. 2002) and Peacher:

If evidence necessary to prove each offense would have been admissible in a separate trial of the other, evidentiary objections to joinder are largely answered; only if the inadmissible overlap is likely to have substantially tainted the jury’s verdict is actual prejudice shown.

Here, the Court found no demonstration that hearing evidence about James Lewis’s abuse of M.D. actually tainted the jury’s separate assessment of Watts. It again relied on the differentiated verdicts as circumstantial proof that the jury carefully compartmentalized the evidence.

Finally, on James Lewis’s statement, the Court emphasized:

• The snippet used at trial was narrowly edited to mention only why the children might accuse “you” (James Lewis);
• The prosecutor and a trooper explicitly identified the statement as pertaining solely to “James Lewis Watts” and “accusations against him”; and
• Nothing in the content logically or immediately implicated Watts; it addressed only any motive to accuse James Lewis.

Under Peacher, the Confrontation Clause problem arises in a joint trial if:

the statement either expressly or by immediate implication tends to incriminate another defendant.

The Court held that James Lewis’s statement did not cross that line—either textually or when viewed with other evidence—and therefore did not create Bruton-type prejudice for Watts.

4. Commentary and Implications

Though unpublished, the decision reaffirms a broad reading of “same series of acts or transactions” in the joinder context for intra-household child sexual abuse:

• Where multiple adults in one household are accused of similar sexual acts against the same children during the same period, Kentucky courts are likely to perceive a sufficient logical nexus to support joint trial, even without express complicity or joint-commission charges.
• Concerns about re-traumatizing child victims by multiple trials weigh heavily in the judicial-economy calculus.

Defense counsel facing such joinder should anticipate that:

• Mere differences in counts or victims will rarely suffice to show undue prejudice;
• Overcoming the presumption that juries can keep evidence straight requires a concrete showing of confusion or spillover—something more than speculation.

At the same time, the Court’s heavy reliance on the jury’s mixed verdict underscores the importance, in close joinder cases, of:

• Careful trial management (distinct labels, seating, clothing); and
• Clear jury instructions differentiating defendants and counts.

The silent dissent suggests not all justices are equally comfortable with the breadth of joinder in abuse cases of this kind, but without an opinion the precise point of disagreement remains unknown.

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B. Exclusion of Alleged “Pattern” of False Allegations Against Other Men (KRE 412 & 403)

1. The Defense Theory

Watts sought to argue that Sarah had a pattern of falsely accusing men in her life of abuse, including:

• Allegations against the children’s biological fathers;
• Allegations involving a 15‑year‑old and A.D.;
• An allegation by A.D. against her brother, who had a pending sex charge;
• A juvenile sex case involving A.D. herself; and
• Non-sexual allegations by G.T. that another boyfriend made him stand in a corner.

The defense’s purpose was twofold:

• To impeach Sarah’s credibility and motives; and
• To suggest that the children might have a learned pattern of alleging abuse at the instigation or influence of adults.

2. Rape Shield (KRE 412) and “Demonstrably False” Prior Accusations

KRE 412 generally bars evidence of a sexual-abuse victim’s other sexual behavior or sexual predisposition. However, Kentucky precedent has recognized a narrow exception for prior sexual assault allegations by the victim that are “demonstrably false.” See:

• Dennis v. Commonwealth, 306 S.W.3d 466 (Ky. 2010);
• Perry v. Commonwealth, 390 S.W.3d 122 (Ky. 2012).

Key elements of this doctrine:

• To pierce the rape shield, the defense must show a “distinct and substantial probability” that the prior allegation was false;
  • This is lower than absolute proof of falsity, but more than mere speculation.
• Examples of sufficient proof (non-exhaustive):
  • Victim’s recantation of the prior allegation;
  • An investigation establishing facts wholly inconsistent with the allegation;
  • Circumstances strongly suggesting a motive to fabricate in both prior and current case;
  • Markedly inconsistent stories told to different people or at different times.
• Conversely, a mere denial by the alleged prior perpetrator, or an “unsubstantiated” conclusion by child-protection authorities, does not suffice.

The Supreme Court found that the defense proffer failed this standard:

• Both fathers denied past allegations, but denial alone is not enough;
• Investigations that simply “fail to substantiate” abuse do not affirmatively establish the allegations as false (as Dennis expressly holds).

Notably, regarding the allegation by A.D. against her father when she was about three:

• Sarah testified that A.D. told her her father had rubbed her genitals in the bath and that they did report this;
• Medical examination was not completed because the child was uncooperative, so the outcome was “unsubstantiated,” not “false.”

On these facts, the Court held the defense had not shown “demonstrable falsity” and therefore KRE 412’s protective shield remained in place. The prior allegations (or the absence of proof supporting them) could not be used as impeachment of the complainants’ credibility.

3. KRE 403: Probative Value vs. Confusion of the Issues

Even assuming some evidence were not blocked by KRE 412, the Court further held it was properly excludable under KRE 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury…

Two central points drove this analysis:

• Weak probative value on “pattern” theory:
  • In the present case, the 2017 and 2020 reports of abuse against Watts and James Lewis were initiated by school personnel and G.T. himself after he had been living separately with his father—not by Sarah.
  • Sarah admitted reporting only one prior suspicion (against A.D.’s father); this is insufficient to show a “pattern” of malicious reporting.
  • The children testified they had not accused other people of sexual abuse (A.D. likely did not remember the allegation when she was three).
• High risk of confusion and side issues:
  • Introducing multiple, disparate prior allegations (each requiring exploration of who said what, against whom, when, and with what outcome) would generate a series of mini-trials within the main trial.
  • These “side issues” would distract jurors from the actual charges, fitting precisely within KRE 403’s “confusion of the issues” concern, as described in Commonwealth v. Melton, 670 S.W.3d 861 (Ky. 2023).

The Court also suggested an alternative inference: rather than proving a programmatic pattern of fabricated abuse, the family history might instead support the view that this family, and Sarah in particular (herself a confirmed prior victim who later married her abuser), exposed the children to heightened risk of abuse—which does not aid Watts’s defense.

4. Commentary

The opinion reinforces several practical lessons for Kentucky defense counsel:

• It is exceptionally difficult to introduce alleged prior false allegations of sexual abuse, whether made by the child or by a parent as “reporting source,” Unless:
  • There is tangible evidence of falsity (recantation, exonerating facts, or powerful motive-to-fabricate parallels); and
  • The prior events are closely connected in a way that significantly illuminates credibility in the current case.
• “Unsubstantiated” child-protection findings are not a proxy for falsity. This is a critical doctrinal point that the Court reaffirms.
• Attempts to stitch together a “pattern” narrative spanning multiple men, time periods, and circumstances will often be rejected under KRE 403 as confusing and only marginally probative.

On the other hand, the Court did permit limited cross-examination of the children about prior accusations in a narrow way—allowing them to be asked whether they had accused anyone else, but requiring counsel to accept their answers and precluding extrinsic evidence. That is a standard KRE 608(b)-type limitation, and it preserves some room for direct credibility challenges while preventing sprawling collateral inquiries.

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C. Admission of Watts’ YouTube Videos (KRE 404(b))

1. The Evidence

Two short videos from Watts’ YouTube account were introduced:

• Kitchen video: Watts holds cookies out of G.T.’s reach, joking that this is “a good way to torture kids if they want some cookies.” G.T. laughs.
• Bedroom video:
  • Filmed in Watts and G.T.’s shared bedroom; G.T. dances in a cape as “Captain Underpants.”
  • Child appears in shorts/boxer-style underwear; M.D. enters, and Watts tells her to go to bed or get her “ass whooped.”
  • G.T. jokes he is “gay,” then says “just kidding,” and Watts quips that “he might not be kidding because he really is.” Watts calls G.T. a “dumbass.” The tone is teasing; G.T. giggles.

The Commonwealth offered these videos to:

• Corroborate that Watts lived with the children and shared a bedroom with G.T.;
• Show that Watts spent time alone with G.T. in that room (thus demonstrating opportunity for abuse); and
• Illustrate Watts’ authority/control dynamic with the children (threatening to “whoop” M.D.).

2. KRE 404(b) Framework

KRE 404(b) bars use of “other crimes, wrongs, or acts” to prove character in order to show action in conformity, but allows such evidence if:

• Offered for another legitimate purpose (e.g., motive, opportunity, intent, plan, identity); or
• Inextricably intertwined with the charged offense.

The Kentucky Supreme Court applies a three-part test (as in Gasaway v. Commonwealth, 671 S.W.3d 298 (Ky. 2023)):

1. Relevance under KRE 401;
2. Probativeness – does the jury have a reasonable basis to conclude the acts occurred and were committed by the defendant, and that they bear on a legitimate 404(b) purpose?
3. Prejudice vs. probative value under KRE 403.

Here, the parties assumed KRE 404(b) applied, although the Court noted it is not obvious these videos reflected “crimes, wrongs, or acts” at all. Still, it proceeded on that assumption.

3. The Court’s Analysis

• Relevance: The videos were relevant to show:
  • Watts and G.T. in the same home and bedroom, alone together;
  • The physical layout of the bedroom; and
  • Watts’ supervisory role and authority.
• Probativeness: They were probative of:
  • Opportunity—contradicting any suggestion that Watts never had private access to the child;
  • Watts’ disciplinary authority (telling M.D. she would be “whooped”), which was consistent with A.D.’s testimony that Watts threatened to “whoop” her if she disclosed the abuse.
• Prejudice: The Court rejected the defense’s contention that the videos were “highly prejudicial”:
  • Defense counsel’s own trial characterization was that the videos were “silly” and not especially concerning, aside from one “gay” reference;
  • The overall tone was playful—no nudity, no sexual conduct; G.T. was laughing and enjoying the interaction;
  • While some language (“dumbass,” “ass whooped”) is coarse, it does not by itself inflame the jury to decide the case on an improper basis.

The trial judge described the videos as “not all that relevant except to put them in the house together” and “not prejudicial.” The Supreme Court essentially agreed with that calibration: low to modest relevance, low prejudice, hence admissible. The judge also limited prejudice further by not allowing the jury to take the videos to the deliberation room.

4. Commentary

The ruling underscores that casual home videos may be admissible to show:

• Relationship and familiarity between defendant and child;
• Physical layout of spaces relevant to alleged offenses; and
• Opportunity and control dynamics.

Defense counsel should be prepared that:

• Courts will give wide latitude to such evidence when it fills in the context of the living arrangement; and
• Arguments that such videos inherently invite a “he’s the kind of person who would do this” inference may be weak absent truly disturbing content.

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D. Confrontation Clause and Kentucky’s “Face-to-Face” Right

1. Co-Defendant’s Police Statement

The Confrontation Clause of the Sixth Amendment and Section 11 of the Kentucky Constitution prohibit admission of testimonial hearsay by a non-testifying co-defendant that incriminates the defendant. Under Bruton-line doctrine and Peacher:

In a joint trial, the Confrontation Clause ban applies even to hearsay statements offered as evidence against the co-defendant declarant himself, if the declarant does not testify and if the statement either expressly or by immediate implication tends to incriminate another defendant.

Here, the only snippet played for the jury was:

Officer: Is there any reason you can think of that they would accuse you? James Lewis: No, I honestly don’t know.

Watts argued that, in the context of the Commonwealth’s theory that the children had no motive to lie about either defendant, this snippet effectively bolstered the credibility of their accusations against him, not just James Lewis.

The Court rejected that claim for several reasons:

• The redacted statement linguistically and logically concerns only James Lewis—“they would accuse you.”
• The officer’s trial testimony framed it explicitly in terms of “accusations against him, James Lewis Watts.”
• No other evidence or statement was introduced tying James Lewis’s lack of motive-for-false-accusation to Watts.
• The prosecutor’s theory of the case is not itself evidence; even if the Commonwealth argued that the children broadly had no motive to lie, that argument does not transform this narrow statement into evidence about Watts.

Thus, there was no Bruton-type violation because the statement did not “expressly or by immediate implication” incriminate Watts, and his confrontation rights were not triggered by its admission.

2. Courtroom Configuration and “Face-to-Face” Confrontation

The more structurally novel issue concerned the physical arrangement of the courtroom. To maximize the jury’s ability to see the child witnesses’ faces and body language, the trial court:

• Seated the witnesses at a table in the middle of the courtroom, facing the jury; and
• This naturally placed the defendants behind the witnesses, so that the children’s backs were toward the defendants while they testified.

Watts argued that this setup violated:

• His Sixth Amendment right “to be confronted with the witnesses against him”; and
• His Section 11 right “to meet the witnesses face to face.”

The Court drew on:

• Maryland v. Craig, 497 U.S. 836 (1990), where the U.S. Supreme Court held that face-to-face confrontation is a preference, not an absolute, and can give way to public policy and trial necessities in certain child sexual abuse cases; and
• Sparkman v. Commonwealth, 250 S.W.3d 667 (Ky. 2008), in which Kentucky treated the federal and state confrontation rights as “basically the same” in substance.

Key considerations relied upon by the Court:

• The jury must be able to fully see the witness’s face and body, as credibility determination is “the province of the jury alone” (citing Carson v. Commonwealth, 621 S.W.3d 443 (Ky. 2021)).
• The original witness-box configuration only allowed the jury to see the top half of a witness’s face.
• The children were still testifying in the physical presence of the defendants, merely not oriented toward them.
• Defense counsel were encouraged, and did in fact, approach and position themselves directly in front of the witnesses during examination.
• The children turned and visually identified the defendants in open court when asked.

The Court concluded that, in this arrangement:

• The core confrontation concerns (physical presence, oath, cross-examination, observation by factfinder) were fully satisfied;
• Any reduction in “face-to-face” eye contact between defendant and witness was justified by the public policy interest in:
  • Making young child witnesses more comfortable; and
  • Enabling the jury to accurately assess demeanor and credibility.

Consequently, there was no abuse of discretion or violation of either the federal or state confrontation guarantees.

3. Commentary

This aspect of Watts is particularly important in child sexual abuse prosecutions:

• It effectively endorses, at least on these facts, in-courtroom spatial modifications that prioritize:
  • Jury visibility of the witness; and
  • Witness comfort and reduced intimidation;
  even when that reduces defendant–witness face-to-face orientation.
• The Court leans on Craig’s “preference” language to treat “face-to-face” not as literal constant eye contact, but as a component of a broader confrontation package.

From a defense standpoint, this raises nuanced strategic issues:

• Challenges to such seating arrangements will likely need to show concrete prejudice—e.g., that counsel could not communicate effectively with the defendant about witness demeanor, or that the modified layout actually hindered cross-examination.
• Courts will almost certainly require that any such arrangement preserve:
  • Unobstructed view of the witness by the jury;
  • Physical presence of the defendant in the courtroom; and
  • Full opportunity for counsel to confront and cross-examine the witness.

Because this is an unpublished opinion, it does not formally dictate statewide practice, but it will likely be cited (where permitted) as persuasive authority favoring child-sensitive courtroom layouts that still meet the minimum confrontation standards.

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E. Statutory Double Jeopardy Under KRS 505.020(1)(c)

1. Constitutional vs. Statutory Double Jeopardy

Watts did not argue a classic constitutional double jeopardy claim under the Blockburger “same elements” test. He conceded that first-degree sodomy and first-degree indecent exposure each contain elements the other does not.

Instead, he invoked KRS 505.020(1)(c), Kentucky’s “course-of-conduct” double jeopardy statute, which provides:

When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when: … (c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process…

The central questions become:

• Is either offense “designed to prohibit a continuing course of conduct,” as opposed to discrete acts?
• Even if both arise from a single “episode,” do the facts show separate and distinct attacks or acts?

Key precedents:

• Welborn v. Commonwealth, 157 S.W.3d 608 (Ky. 2005): distinguishes between offenses that punish each individual act vs. those that target an ongoing course.
• Howard v. Commonwealth, 496 S.W.3d 471 (Ky. 2016): analysis turns on statutory text—does it speak in terms of repeating or continuous behavior, or discrete acts?
• Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014): multiple shots fired; whether each shot can support a separate conviction depends on whether there was sufficient pause to “reflect and reformulate” intent between acts.

2. Statutory Elements: Sodomy vs. Indecent Exposure

• First-degree sodomy (KRS 510.070(1)(b)(2)):

  A person is guilty … when he engages in deviate sexual intercourse with another person who is … less than twelve (12) years old.

  Deviate sexual intercourse (KRS 510.010(1)) includes “any act of sexual gratification involving the sex organs of one person and the mouth or anus of another.”
• First-degree indecent exposure (KRS 510.148):

  A person is guilty … when he intentionally exposes his genitals under circumstances in which he knows or should know that his conduct is likely to cause affront or alarm to a person under the age of eighteen (18) years.

Neither statute is phrased in terms of a “continuing course of conduct”; each speaks of a single act (an act of sexual gratification involving specified body parts; an exposure of genitals under specified circumstances). Under Welborn and Howard, they therefore target discrete acts, not an undifferentiated ongoing course.

3. Application to Watts

Both the sodomy and indecent exposure convictions stem from a single incident in Watts’ bedroom with A.D. The jury instructions separated them:

• Sodomy instruction: Convict if Watts “engaged in deviate sexual intercourse … when he put his penis into the mouth of [A.D.] in his bedroom after he told her to ‘suck my wee-wee’” and she was under 12.
• Indecent exposure instruction: Convict if Watts “intentionally exposed his genitals to [A.D.] in his bedroom under circumstances in which he knew such conduct was likely to cause affront or alarm,” and she was under 18.

A.D.’s testimony showed a :

1. Watts called her into his bedroom and shut/blocked the door;
2. He pulled down his pants such that she saw his penis (she described his genital appearance and noted he still wore a shirt);
3. Only after that did he instruct her to perform oral sex, leading to the deviate sexual intercourse.

On these facts, the Court concluded:

• The indecent exposure was complete at the moment Watts exposed his penis to a child in a closed bedroom, knowing that such conduct was likely to cause affront or alarm.
• The sodomy was a separate, subsequent act of deviate sexual intercourse.
• Each offense was therefore independently satisfiable—if the exposure had ended there, he could have been convicted of indecent exposure; if the exposure had not preceded the act, he could still be convicted of sodomy (assuming some other way of initiating the act).

Watts argued that there was no evidence of how A.D. felt upon seeing his exposed genitals; thus, he claimed, the indecent exposure was wholly subsumed into the sodomy. The Court responded that:

KRS 510.148 focuses on the defendant’s mental state—whether he knows or should know that his conduct is likely to cause affront or alarm; it does not require proof that the child in fact felt affronted or alarmed.

Accordingly, the Court held there was no violation of KRS 505.020(1)(c), and certainly no palpable error (the standard for unpreserved claims per Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006)).

4. Commentary

Although unpublished, this is an important course-of-conduct double jeopardy application:

• It confirms that where a sexual offense episode includes a temporally distinct genital exposure followed by sexual contact, prosecutors may lawfully:
  • Charge both indecent exposure and sodomy (or other sexual offense); and
  • Obtain separate convictions and punishments, so long as facts support two discrete acts.
• The analysis parallels Spicer’s approach to multiple shots: the law looks for a cognizable break allowing the defendant to “pause and reflect” between acts, even if the overall episode is brief.

For defense counsel, the opinion highlights the importance of:

• Carefully parsing the timeline of conduct and arguing, where plausible, that multiple counts are in fact a single, unitary act;
• Preserving KRS 505.020 objections at trial, not just on appeal, so the issue is reviewed under a more forgiving standard than palpable error.

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V. Simplifying Key Legal Concepts

1. Joinder and Severance

• Joinder: Trying multiple charges or multiple defendants in a single trial when they are part of the same event or series of events.
• Severance: Splitting charges or defendants into separate trials when joinder would be unfairly prejudicial.
• Courts balance efficiency (avoiding repetitive trials, reducing trauma to victims) against the defendant’s right to have the jury fairly assess evidence relevant only to him.

2. Rape-Shield Rule and “Demonstrably False” Prior Accusations

• KRE 412 tries to keep sexual assault trials focused on the alleged conduct, not the victim’s sexual history or “reputation.”
• Exception: If a victim previously made sexual assault accusations that are demonstrably false, those can sometimes be used to attack credibility—but the bar is high.
• “Unsubstantiated” investigations ≠ “false”; they simply mean there was not enough proof one way or the other.

3. KRE 404(b) “Other Acts” Evidence

• Courts are wary of “he’s a bad person, so he must have done this” reasoning.
• But prior acts can come in for limited purposes:
  • Showing opportunity, intent, plan, etc.;
  • Providing context (e.g., living arrangements, relationship dynamics).
• Judges must weigh whether that limited usefulness is outweighed by the risk the jury will use the evidence improperly as pure character evidence.

4. Confrontation Clause Basics

• The Confrontation Clause ensures the defendant can challenge the prosecution’s witnesses through face-to-face testimony, oath, and cross-examination.
• Absolute, literal “eyeball-to-eyeball” contact is not always required, especially in child sex cases, as long as:
  • The witness and defendant are both physically present in the courtroom;
  • The witness testifies under oath;
  • The defendant’s lawyer can cross-examine fully; and
  • The judge and jury can see the witness clearly.

5. Course-of-Conduct Double Jeopardy (KRS 505.020)

• Even if two offenses have different technical elements (satisfying constitutional double jeopardy), Kentucky may still bar multiple convictions if:
  • The statute is aimed at a continuing course of conduct (like ongoing neglect), and
  • The defendant’s entire conduct is one uninterrupted episode.
• Where statutes target distinct acts and the evidence shows sequential events (e.g., exposure, then sexual act), multiple convictions are usually allowed.

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VI. Broader Impact and Significance

Although designated “Not to be Published,” Watts v. Commonwealth is a sophisticated application of Kentucky criminal procedure and evidence doctrine in a challenging area—family-based child sexual abuse. Its key takeaways include:

• Robust support for joint trials in multi-offender child abuse cases involving a single household, with strong deference to trial courts on severance absent concrete, demonstrable prejudice.
• Reaffirmation of stringent limits on using alleged “patterns” of prior false abuse reports to impeach:
  • “Unsubstantiated” investigations are not enough; and
  • Dilute “pattern” arguments across many actors and time periods will likely fail under KRE 403.
• Acceptance of benign contextual video evidence of defendant–child interactions (e.g., home videos) to show opportunity and authority, where prejudice is minimal.
• Child-sensitive courtroom configurations that still respect confrontation rights, with an emphasis on the jury’s need to see and evaluate the witness’s demeanor.
• Clear course-of-conduct analysis under KRS 505.020(1)(c), confirming that:
  • First-degree indecent exposure and first-degree sodomy address different acts; and
  • Sequential exposure and sexual contact within a single incident can properly yield multiple convictions.

Practitioners should recognize that, even without binding precedential status, Watts synthesizes and illustrates how Kentucky appellate courts are likely to approach:

• Joinder/severance in intra-family sex cases;
• Rape-shield disputes over alleged prior false accusations;
• Child witness courtroom management; and
• Double jeopardy challenges under KRS 505.020 in multi-count sexual episodes.

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VII. Conclusion

Watts v. Commonwealth ultimately leaves the trial result intact: the life sentence for Watts stands. But its deeper significance lies in how it:

• Reaffirms trial courts’ broad discretion in structuring complex, emotionally charged child-abuse trials; and
• Clarifies, in applied form, several recurring evidentiary and procedural problems—joinder, rape-shield exceptions, 404(b) opportunity evidence, confrontation in child-sensitive courtrooms, and course-of-conduct double jeopardy.

For future litigants and judges confronting similar issues in the absence of directly on-point published authority, Watts provides a thoughtful and detailed roadmap for the analysis Kentucky’s highest court is likely to apply.