Reaffirming the Admissibility of Prior Similar Sexual Acts Under KRE 404(b) and the Directed-Verdict Threshold in “Continuing Course of Conduct” Offenses

Commentary on Darrin Owens v. Commonwealth of Kentucky, Supreme Court of Kentucky, No. 2024-SC-0051-MR (20 June 2025) (Not-to-Be-Published)

1. Introduction

The Supreme Court of Kentucky’s memorandum opinion in Owens v. Commonwealth affirms the conviction and twenty-year sentence of Darrin Owens for multiple counts of second-degree sodomy, second-degree rape, and persistent felony offender status. While designated “Not to be Published” under RAP 40(D)—meaning it carries no binding precedential effect within Kentucky—the opinion nonetheless offers a detailed application of two recurring evidentiary and procedural questions:

• KRE 404(b) & KRE 403: When, and to what extent, may the Commonwealth introduce evidence of other sexual crimes against the same victim to prove motive, intent, plan, or lack of mistake?
• Directed Verdict Standard (Benham) & KRS 501.100: How much evidence is sufficient to withstand a motion for directed verdict in a “continuing course of conduct” prosecution where the jury need not pinpoint precise dates for each act?

By unpacking the Court’s reasoning on these points, practitioners gain guidance for crafting 404(b) notices, challenging (or defending) motions to exclude, and evaluating whether proof in continuing-abuse cases surpasses the “mere scintilla” threshold required to reach a jury.

2. Summary of the Judgment

Owens appealed on two grounds:

1. KRE 404(b) Error. He contended that allowing evidence of sexual acts committed against the same minor victim (E.M.) in counties other than Trimble was unduly prejudicial and served only to show propensity.
2. Insufficient Evidence (Directed Verdict). He argued that one sodomy count, framed as occurring between 14–18 October 2020, lacked proof of two or more qualifying acts as required by KRS 501.100(4).

The Supreme Court rejected both arguments, holding:

• The “other‐acts” evidence was relevant to motive, plan, and the continuing nature of the sexual relationship; its probative value was not substantially outweighed by undue prejudice (§§ 404(b) & 403).
• The Commonwealth presented more than a scintilla of evidence—E.M.’s testimony of multiple incidents and corroborating geo-location/forensic data—making it reasonable for a jury to find two acts of sodomy within the charged window. Hence, the trial court correctly denied a directed verdict.

3. Analysis

3.1 Precedents Cited

• Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) – Articulates the directed-verdict standard; adopted verbatim.
• Lopez v. Commonwealth, 459 S.W.3d 867 (Ky. 2015) – Confirms that prior acts against the same victim are usually admissible under KRE 404(b) to prove intent or plan.
• Kelly v. Commonwealth, 655 S.W.3d 154 (Ky. 2022) – Clarifies that KRE 404(b) purposes are illustrative, not exhaustive.
• Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016) – Emphasizes the “continuing motive” rationale in sexual‐abuse prosecutions.
• Breazeale v. Commonwealth, 600 S.W.3d 682 (Ky. 2020) & Richmond v. Commonwealth, 534 S.W.3d 228 (Ky. 2017) – Define “undue prejudice” under KRE 403.
• Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020) – Holds that a defendant need not separately move for a directed verdict on lesser-included offenses.
• Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998) & Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994) – Stress the exclusionary nature of KRE 404(b) and the cautious approach demanded of trial courts.

By aligning with these authorities, the Owens court signals continuity rather than dramatic doctrinal innovation; still, its synthesis of cases furnishes a succinct roadmap for trial judges managing 404(b) disputes in child-sex-abuse matters.

3.2 Legal Reasoning

3.2.1 Admissibility Under KRE 404(b) & 403

The Court undertook the familiar three-step Bell inquiry:

1. Relevance. Prior acts against E.M. (Oldham & Henry Counties) establish Owens’s ongoing motive and show the relational dynamics of domination and secrecy—facts central to the Trimble County allegations.
2. Proof That the Acts Occurred. The Commonwealth offered multiple sources: E.M.’s testimony, DNA from the “bank barn” blanket, jail calls with sexual content, and cellphone geo-location analysis.
3. Prejudice vs. Probative Value. Because the jury already had to hear detailed evidence of similar assaults in Trimble County, the marginal prejudice from additional—but highly probative—testimony was deemed not “undue.” The Court emphasized similarity in modus operandi and temporal proximity as factors bolstering probativeness.

3.2.2 Directed Verdict in Continuing-Course Cases

Under KRS 501.100(4), the Commonwealth had to prove at least two deviate-sexual-intercourse acts within 14–18 October 2020; the jury did not have to agree which specific dates. Evidence satisfying the Benham threshold included:

• E.M.’s testimony of almost daily abuse, plus particular episodes (forced fellatio, mutual oral sex).
• Detective Ellison’s timeline and Mr. Littrell’s cellphone-location analysis situating E.M. in Trimble County on 14-18 October.

Given this, the Court found it “far from unreasonable” for jurors to conclude at least two qualifying acts occurred in that span.

3.3 Impact of the Decision

Although unpublished, the opinion provides practical guidance that will likely be cited in trial briefs (per RAP 40(D)) where no published case squarely addresses:

• Geographically Dispersed Abuse = Single Course. Prosecutors may aggregate similar acts across counties to show plan/motive without violating 404(b), particularly when the same victim and closely-spaced dates are present.
• Continuing-Course Instructions. Drafting separate counts for overlapping date ranges may survive a vagueness attack if the instructions anchor each range to distinct time blocks, even if only days apart.
• Scintilla + Corroboration. Minimal but multi-source corroboration (victim testimony + digital forensics) is enough to cross the directed-verdict threshold in child-sex cases, where eyewitnesses are rarely available.

Future litigants can invoke Owens when urging courts not to exclude other-acts evidence merely because assaults occurred in different venues. Defense counsel, conversely, can study the opinion to craft narrower objections—e.g., distinguishing cases where the temporal gap or dissimilarity in method dilutes probative value.

4. Complex Concepts Simplified

• KRE 404(b). A Kentucky rule that normally blocks evidence of a defendant’s past bad acts if offered merely to show that the defendant is a “bad person.” But the same evidence may come in to prove something else—such as motive, intent, plan, knowledge, identity, or absence of mistake.
• KRE 403. Even relevant evidence can be excluded if it is so inflammatory that it risks the jury deciding on emotion rather than fact. Courts weigh probative value against “undue prejudice.”
• “Continuing Course of Conduct” (KRS 501.100). A charging method for repeated crimes against vulnerable victims. The jury must agree that at least two illegal acts occurred in a named period but need not agree on the exact dates or sequence.
• Directed Verdict (Benham Standard). A procedural motion asking the judge to acquit because the prosecution’s evidence is allegedly too weak. The judge must view all evidence in the light most favorable to the Commonwealth and deny the motion if a reasonable juror could find guilt.
• “Not to Be Published.” Under RAP 40(D), such opinions lack precedential force but may be cited when no published Kentucky case answers the question at hand. Lawyers must attach the opinion in full when citing it.

5. Conclusion

Owens v. Commonwealth fortifies two pillars of Kentucky criminal practice: (1) prior, similar sexual acts against the same victim are generally admissible under KRE 404(b) to prove motive or plan, provided courts carefully balance prejudice under KRE 403; and (2) in continuing-abuse prosecutions, corroborated victim testimony—supplemented by modest forensic or digital evidence—will usually defeat a directed verdict motion. While unpublished, the opinion synthesizes precedent in a fact pattern common to child-sex-abuse litigation, making it a valuable persuasive authority for prosecutors and defense attorneys alike.