Knowing Agreement Waives Instructional Double-Jeopardy Review: Kentucky Upholds Sodomy and Incest Convictions

A. Instructional Waiver and Double Jeopardy

The decisive distinction: forfeiture versus waiver

The trial judge independently questioned whether sodomy and incest overlapped in a way that prohibited separate convictions. Both parties supported submitting the charges. Defense counsel expressly stated that existing case law permitted the jury to consider both counts.

That exchange mattered more than a simple failure to object. RCr 9.54(2) generally requires a party to present its instructional position or make a specific objection before the jury is instructed. But the Court identified an additional barrier: counsel had affirmatively endorsed the position later challenged on appeal.

Forfeiture occurs when a party fails to preserve an objection. An appellate court may sometimes review a forfeited claim for palpable error. Waiver involves knowingly relinquishing the right, and invited error of that kind is not reviewable. The majority concluded that Guevara’s claim fell into the second category.

Precedents governing waiver

• Boggs v. Commonwealth, 718 S.W.3d 651 (Ky. 2025): The Court relied on this recent decision for the rule that express agreement to jury instructions waives a later challenge. It provided a direct procedural basis for rejecting Guevara’s instructional argument.
• Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011): This decision supplied the governing distinction between ordinary nonpreservation and invited error reflecting a knowing relinquishment of a right. Both the majority and concurrence treated that distinction as controlling.
• United States v. Perez, 116 F.3d 840 (9th Cir. 1997): Cited through Quisenberry v. Commonwealth, this authority supported the definition of invited error as a knowing abandonment of a right, rather than mere silence.
• Sanchez v. Commonwealth, 680 S.W.3d 911 (Ky. 2023): Cited through Boggs v. Commonwealth, it reinforced the consequence of affirmative agreement: the alleged instructional error is waived and unavailable for appellate review.

The scope of this reasoning is important. The opinion does not equate every missed objection with waiver. Here, the judge specifically identified the potential constitutional problem, and defense counsel expressly rejected it. Those circumstances supported the conclusion that the relinquishment was knowing.

The majority’s alternative same-elements analysis

Although waiver disposed of the instructional challenge, the majority also concluded that the convictions did not violate double jeopardy. Its analysis compared the statutory elements rather than the particular wording of the agreed instructions.

• First-degree sodomy under the provision at issue required deviate sexual intercourse with a person incapable of consent because the person was under twelve.
• Incest required sexual intercourse or deviate sexual intercourse with a person the defendant knew to fall within a prohibited family relationship.

According to the majority, sodomy required proof of the victim’s age, while incest required proof of the familial relationship. Each therefore contained an element absent from the other.

Precedents governing the statutory comparison

• Blockburger v. United States: The foundational same-elements test asks whether each offense requires proof of an element the other does not. The majority used that framework to assess cumulative punishment.
• Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008): This Kentucky decision supplied the formulation that offenses are the same for double-jeopardy purposes when the required difference in elements is absent.
• Raines v. Commonwealth, 379 S.W.3d 152 (Ky. App. 2012): It directed attention to the statutes’ plain language, supporting the Court’s focus on legislative definitions.
• Dixon v. Commonwealth, 263 S.W.3d 583 (Ky. 2008): It emphasized whether each statute, on its face, contains a different element. This countered Guevara’s attempt to frame the issue principally through the jury instructions.
• Johnson v. Commonwealth, 292 S.W.3d 889 (Ky. 2009): The majority cited it for the proposition that age is not an element of incest in the relevant sense. The opinion expressly acknowledged that it was overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020); it did not treat that later decision as displacing the age-related proposition.
• Howard v. Commonwealth, 484 S.W.3d 295 (Ky. 2016): This case supplied the central distinction between establishing incest and classifying its seriousness. The majority relied on its explanation that age determines the felony class rather than constituting an element of the underlying incest offense.

That last distinction was essential because Guevara’s incest conviction involved a victim under twelve. The majority treated age as a classification factor for incest but as a necessary element of the sodomy offense. Without that distinction, the statutory comparison would require a different analysis.

The opinion notes a 2023 amendment to the incest statute concerning felony classifications. It does not separately decide a retrospective-application question, and the decision should not be read as resolving one.

The concurrence: waiver should end the inquiry

Justice Nickell agreed that Guevara invited the alleged error. He disagreed with reaching the merits afterward, reasoning that a court should consistently enforce the procedural consequence of waiver rather than decide an issue no longer properly before it.

The concurrence’s authorities fall into three related groups:

• Affirmative agreement and invited error: Gasaway v. Commonwealth, 671 S.W.3d 298 (Ky. 2023), reinforced the forfeiture–waiver distinction. Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), applied invited error to an affirmatively accepted defective instruction. Wright v. Jackson, 329 S.W.2d 560 (Ky. 1959), demonstrated the doctrine’s longstanding foundation: a party cannot take advantage of error produced by its own conduct.
• Stopping after waiver: Howard v. Commonwealth, 595 S.W.3d 462 (Ky. 2020); Rudd v. Commonwealth, 584 S.W.3d 742 (Ky. 2019); Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011); Turner v. Commonwealth, 345 S.W.3d 844 (Ky. 2011); and Dudley v. Stevens, 338 S.W.3d 774 (Ky. 2011), were cited collectively to support declining further commentary once an issue is waived. The concurrence did not separately analyze their facts.
• Procedural consistency and restraint: Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010), quoting Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533 (Ky. 2007), and Brown v. Commonwealth, 551 S.W.2d 557 (Ky. 1977), supplied the metaphor of procedural rules as navigational safeguards. Gambrel v. Gambrel, 501 S.W.3d 900 (Ky. App. 2016), and Justice Nickell’s dissent in M.A.B. v. Cabinet for Health & Family Servs., 635 S.W.3d 90 (Ky. 2021), expressed concern that inconsistent enforcement erodes those rules. Finally, Dunn v. Solomon Found., 723 S.W.3d 711 (Ky. 2025), quoting Kulkarni v. Horlander, 701 S.W.3d 181 (Ky. 2024), supported leaving the substantive question for another case.

The concurrence did not reject the majority’s substantive double-jeopardy analysis on its merits. It rejected undertaking that analysis at all. Accordingly, the waiver ruling is the clearest common ground, while the majority’s statutory discussion is expressly alternative reasoning whose necessity was contested.

B. Juror Communication: A Statutory Violation Without Demonstrated Prejudice

Guevara’s interpreter reported seeing a juror smile toward O.G. and mouth words that she believed were “you did a good job.” The interpreter heard nothing, could not reliably observe O.G.’s reaction, and could not confirm an exchange. The trial court declined to remove the juror and indicated that it would remind jurors not to contact witnesses.

The Supreme Court distinguished three questions: whether prohibited contact occurred, whether it established disqualifying bias, and whether it deprived Guevara of a fair trial. The Court found a violation of KRS 29A.310(2), which restricts unauthorized communication with sworn jurors, but concluded that the violation was harmless.

Precedents governing removal and impartiality

• Lester v. Commonwealth, 132 S.W.3d 857 (Ky. 2004), and Hubbard v. Commonwealth, 932 S.W.2d 381 (Ky. App. 1996): These cases established abuse of discretion as the standard for reviewing removal of an already seated juror.
• Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000): It supplied the familiar definition of abuse of discretion: a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
• Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010): It explained impartiality as the ability and willingness to decide the case solely from the trial evidence and instructions, reflecting the federal and Kentucky constitutional guarantees.
• Nunley v. Commonwealth, 393 S.W.3d 9 (Ky. 2013): It distinguished ordinary alternate-juror selection under RCr 9.32(1) from removing a particular juror for cause. Targeted removal requires a reason beyond the ordinary selection process.
• Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991): It supplied the need to establish bias affecting the juror’s evaluation of the evidence, rather than merely identifying an ambiguous reaction.

Precedents governing unauthorized contact

Oro-Jimenez v. Commonwealth, 412 S.W.3d 174 (Ky. 2013), provided the closest analogy. A juror told a witness, “I am sorry you had to go through that.” The communication concerned the witness’s comfort or well-being rather than substantive trial matters and did not require a mistrial.

Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998), likewise involved witness–juror conversations that an investigation found unrelated to the case. It supplied the ultimate inquiry: whether misconduct prejudiced the defendant enough to deny a fair trial.

Applying those decisions, the Court emphasized uncertainty about the words, the absence of a demonstrated response from O.G., and the lack of evidence that other jurors noticed. Even assuming the interpreter’s reading was accurate, the Court considered the encouragement nonsubstantive.

This was not blanket approval of juror encouragement. The Court expressly recognized a greater risk because the conduct occurred in the courtroom during an ongoing trial, unlike the circumstances of the closest comparison. Its conclusion was record-specific: prohibited contact had occurred, but actual prejudice was not established.

C. The Cabinet Letter: Investigative Conclusions Are Not Mere Observations

Defense counsel sought to introduce a letter stating that allegations of abuse concerning M.G. were unsubstantiated. Counsel wanted to use it against Mosley’s testimony that Guevara admitted touching both daughters. The trial judge initially admitted the letter, then reconsidered, excluded it, and admonished the jury.

The Supreme Court upheld the correction. The critical distinction was between a social worker’s observations and the agency’s evaluative conclusion about whether abuse allegations were substantiated.

Precedents governing admissibility

• King v. Commonwealth, 554 S.W.3d 343 (Ky. 2018), and Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999): These decisions established discretionary review of evidentiary rulings and the governing definition of abuse of discretion.
• Jordan v. Commonwealth, 74 S.W.3d 263 (Ky. 2002): This was the direct substantive authority. It rejected an agency document substantiating sexual-abuse allegations and characterized a social worker’s substantiation determination as improper opinion testimony.
• Prater v. Cabinet for Human Res., 954 S.W.2d 954 (Ky. 1997): It distinguished admissible observations, when the relevant witness testifies, from inadmissible conclusions. It also explained that qualifying agency records could not simply enter through the public-records exception; admission as regularly conducted activity required satisfying KRE 803(6)’s more stringent requirements.

KRE 801 defines hearsay, and KRE 803 identifies exceptions. The Court discussed the restrictions on the public-records exception in KRE 803(8)(C), but its reasoning was not limited to who offered the document. Even though the defense offered this letter, its evaluative conclusion encountered the independent barrier identified in the precedents.

The defense’s distinction between a “conclusion” and an “opinion” therefore failed: the existing cases excluded both in this context. Nor did the social worker’s presence at trial transform the conclusion into admissible evidence.

The decision applies the rule symmetrically. An agency’s conclusion that abuse was unsubstantiated did not become admissible merely because it favored the defense, just as a substantiated finding could not serve as improper official endorsement of the prosecution’s allegations. Analytically, an unsubstantiated finding also should not be confused with an affirmative determination that abuse never occurred.

D. Recorded Interviews: Troubling Statements and the Limits of Palpable-Error Review

After Mosley’s cross-examination, the Commonwealth sought to introduce two recorded interviews under the evidence rules identified in the opinion as KRE 613 and 801(a). Defense counsel did not oppose playing the recordings generally but objected to references to immigration or deportation.

The Commonwealth failed to mute every relevant passage. The jury heard discussion of deportation, Guevara’s English proficiency, and offensive generalizations concerning incest or child molestation associated with Amish people and people from El Salvador. Counsel did not contemporaneously object when those passages played.

The Court treated the appellate challenge to admission and playback as unpreserved. The earlier limited objection did not, on the Court’s account, preserve the claims presented for ordinary appellate review.

Precedents defining palpable error

• Huddleston v. Commonwealth, 542 S.W.3d 237 (Ky. 2018), quoting Brooks v. Commonwealth, 217 S.W.3d 219 (Ky. 2007): Relief requires a probability of a different result or an error fundamentally threatening due process.
• Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006): Quoted through Huddleston v. Commonwealth, it directed attention to defects so manifest, fundamental, and unambiguous that they threaten the judicial process’s integrity.
• Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006): It described palpable error as plain and readily noticeable, and sufficiently grave that leaving it uncorrected would seriously affect the proceedings’ fairness.

Those authorities explain RCr 10.26’s requirement of manifest injustice. They were introduced earlier in the opinion’s discussion of preservation but supplied the framework for the recordings issue.

The Court acknowledged the judge’s responsibility to limit the jury to relevant evidence. Nevertheless, it declined to require the judge to exclude, without objection, portions of a recording the judge had not yet seen.

The Court was expressly troubled by the statements but found no manifest injustice. It relied on substantial additional evidence supporting the verdict, the possibility that the statements damaged the Commonwealth’s own witness and presentation, Mosley’s admission that he was a sex offender, and the absence of evidence that the failure to mute was deliberate.

This is a narrow appellate conclusion, not a ruling that ethnic stereotypes or immigration-related insinuations are generally admissible. The Court did not comprehensively resolve the recordings’ admissibility under the cited evidence rules. It held that this unpreserved claim did not justify reversal under the demanding palpable-error standard.