Introduction

In Aaron Bowlin v. Commonwealth of Kentucky (Supreme Court of Kentucky, Oct. 23, 2025), the Court affirmed Bowlin’s convictions on five counts of first-degree sexual abuse involving two child victims, N.H. and C.H., and upheld the sentencing court’s imposition of incarceration fees. The case presents a multi-issue appeal addressing: (1) the scope of a defendant’s right to present a defense—including late-disclosed defense witnesses and cross-examination into potential bias/motive; (2) the admissibility and effect of victim-impact subject matter during the guilt phase; (3) unanimity concerns in multi-incident sexual abuse instructions; and (4) the continued authority of sentencing courts to order reimbursement of jail fees following the General Assembly’s 2022 amendment to KRS 441.265.

Though designated “Not to be Published” under RAP 40(D) and not binding as precedent, the opinion offers practical guidance, particularly on two fronts: first, how Kentucky courts harmonize the 2022 amendment to KRS 441.265 with KRS 532.352 and 532.358 to preserve sentencing courts’ authority to impose incarceration fees; and second, how appellate courts analyze alleged infringements on the right to present a defense through the lens of harmless error.

Summary of the Opinion

• Right to present a defense: The trial court abused its discretion by preventing Bowlin from calling a late-disclosed defense witness (Barak Choate) and by limiting cross-examination of S.H. and C.H. about potential custody disputes that Bowlin argued furnished a motive to fabricate allegations. However, those errors were deemed harmless because Choate’s central statements (as proffered by avowal) were inadmissible hearsay and because the remaining trial evidence—especially the victims’ detailed testimony—was sufficient.
• Victim-impact testimony during guilt phase: N.H.’s brief statement that she “put off starting college” was not preserved and, on palpable error review, did not warrant reversal. It was both far narrower and less inflammatory than the victim-impact testimony condemned in Alderson v. Commonwealth.
• Jury unanimity: The “bare-bones” jury instructions adequately differentiated the multiple counts by location and event description and thus satisfied the constitutional requirement of a unanimous verdict.
• Incarceration fees: Despite the 2022 amendment to KRS 441.265 removing the phrase “sentencing court,” sentencing courts retain jurisdiction and statutory authority to order reimbursement of incarceration costs, in harmony with KRS 532.352 and KRS 532.358. Interpreting KRS 441.265 otherwise would render those statutes ineffectual and produce an absurd result.

The Court affirmed Bowlin’s convictions and the trial court’s sentencing order, including incarceration fees. Justice Thompson dissented, concluding the evidentiary restrictions denied Bowlin his constitutional right to present a defense and were not harmless beyond a reasonable doubt.

Analysis

Precedents Cited and Their Influence

• Right to present a defense: The Court reaffirmed core principles from Roberson v. Commonwealth (defendant’s right to present a meaningful defense) and Daugherty v. Commonwealth (the defense may actively put on evidence), while also underscoring Newcomb v. Commonwealth: evidentiary rules still apply, and exclusions not undermining fundamental elements of the defense are reviewed for abuse of discretion. The Court found an abuse of discretion here as to the exclusion of Choate and limits on exploring custody motive, but ultimately applied harmless error review.
• Surprise/undisclosed witnesses: Peyton v. Commonwealth and Collins v. Galbraith emphasize a trial court’s discretion to exclude surprise witnesses; factors include bad faith and prejudice. The Court noted no discovery order or agreement required disclosure here, no bad faith was found, and the Commonwealth previously knew of Choate from the Hickman County case—cutting against prejudice. That combination favored allowing Choate to testify.
• Relevance and personal knowledge: KRE 401’s minimal probativeness threshold (Roe v. Commonwealth) and KRE 602 on personal knowledge framed the analysis. Because Bowlin’s defense posited a custody-related motive to fabricate, the Court found relevance and permitted scope for cross-examination, criticizing the trial court’s documentary-foundation requirement as non-existent in Kentucky law.
• Hearsay constraints: KRE 801 and 802 guided the Court’s conclusion that Choate’s recounting of S.H.’s alleged statements to a CHFS worker was inadmissible hearsay when offered for truth.
• Harmless error standards: Allen v. Commonwealth provided the “substantially swayed the verdict” test; Hodge and Jackson invoked the policy against overturning verdicts for mere technicalities. In Confrontation Clause contexts, Faughn v. Commonwealth (quoting Coy v. Iowa) cabins harmlessness review to the remaining evidence, avoiding speculation about what cross-examination might have changed.
• Victim-impact evidence: Alderson v. Commonwealth condemned “repeated and extensive” impact testimony during the guilt phase; the Court distinguished Alderson, finding N.H.’s six-word response neither extensive nor inflammatory.
• Prosecutorial closing argument: Brown v. Commonwealth and Dickerson v. Commonwealth supply the “flagrant misconduct” factors, under which the Court found the prosecutor’s brief reference to N.H.’s postponement of college not flagrantly prejudicial.
• Unanimity and “bare-bones” instructions: Harp v. Commonwealth holds that multiple-count instructions must include “basic evidentiary identification” distinguishing each offense. Miller v. Commonwealth and Capstraw v. Commonwealth reinforce unanimity requirements. The Court found the instructions adequately differentiated by location and circumstances.
• Incarceration fees after the 2022 amendment: Jones v. Clark County (pre-amendment) held only the “sentencing court” could impose fees under then-current KRS 441.265. After the 2022 amendment removed “sentencing court,” the Court harmonized KRS 441.265 with KRS 532.352 and 532.358, invoking Schoenbachler v. Minyard and Cosby v. Commonwealth to avoid interpretations that render statutes meaningless or produce absurd results. The sentencing court’s authority remains intact.

Legal Reasoning

1) Right to present a defense and evidentiary limits

The Court balanced a defendant’s constitutional right to present a meaningful defense against the enforcement of evidentiary rules. Two aspects were central:

• Exclusion of Choate: Although there was no discovery order or voir dire requirement to disclose witnesses, and no evidence of bad faith or prejudice, the trial court excluded Choate. The Supreme Court deemed that an abuse of discretion. But after reviewing Choate’s avowal (offer of proof), the Court concluded his testimony largely comprised inadmissible hearsay (statements by S.H. offered for their truth), and therefore its exclusion did not substantially influence the verdict.
• Limits on cross-examination regarding custody: The Court recognized cross-examination on potential bias/motive is protected, and that relevance under KRE 401 is “powerfully inclusionary.” It found error where the trial court required documentary proof to ask S.H. and C.H. about custody issues. However, the Court emphasized defense counsel did not fully exploit opportunities provided (for example, follow-up with S.H. on her personal knowledge) and, as to Confrontation Clause analysis, found the remaining evidence solid enough that the limits did not “substantially sway” the verdict.

Notably, the majority applied ordinary harmless error review rather than the “harmless beyond a reasonable doubt” standard for constitutional error, signaling its view that these errors, though real, did not eviscerate “fundamental elements” of Bowlin’s defense as actually presented.

2) Victim-impact testimony during the guilt phase

The Court agreed the prosecutor’s question elicited impact-type content—N.H. postponing college—but emphasized the de minimis nature of the testimony. Distinguishing Alderson (three victims, detailed emotional and life-impact narratives), the Court held the brief exchange was not palpable error under RCr 10.26. As to closing, the prosecutor’s isolated reference did not amount to flagrant misconduct given the overall evidentiary strength and lack of misleading character.

3) Jury unanimity and “bare-bones” instructions in multi-incident cases

Applying Harp and Miller, the Court assessed whether the instructions allowed jurors to identify and agree on the same, specific incidents. It found the instructions used enough “basic evidentiary identification”—dates approximated to 2013, locations (“bathroom of their home in the city of Hickman”; “home on Terrace Dr., where they were staying”), and contextual details matching trial testimony—to distinguish among the episodes and satisfy unanimity.

4) Incarceration fees after the 2022 amendment to KRS 441.265

The Court’s statutory analysis is the most forward-looking component. Jones required the “sentencing court” to impose fees under pre-2022 KRS 441.265. In 2022, the legislature removed that phrase. The defense argued that removal stripped sentencing courts of authority. The Court rejected that reading for two reasons:

• KRS 532.352(1) and (3) and KRS 532.358 continue to vest authority in the sentencing court to order reimbursement and set the time and amount, and to direct payment “as specified by written order of the court.”
• Interpreting KRS 441.265 to exclude judicial authority would nullify KRS 532.352 and 532.358, an outcome Kentucky canons of construction eschew as absurd and ineffectual.

Harmonized, these statutes preserve the sentencing court’s jurisdiction and authority to impose incarceration fees, notwithstanding KRS 441.265’s amended language.

Impact

• Defense practice and witness disclosure: Even absent a formal order or mutual agreement requiring disclosure, defense counsel should anticipate trial courts’ scrutiny of late-disclosed witnesses. Here, the Supreme Court flagged exclusion as an abuse where there was no bad faith or prejudice, especially when the Commonwealth already knew the witness from a related case. Practitioners, however, should not rely on that safety valve; early disclosure avoids risk.
• Cross-examination into bias/motive: The Court explicitly recognized that questions probing a witness’s motive—such as a custody battle—meet the low threshold of relevance without documentary proof. Trial courts should permit inquiry into a witness’s personal knowledge of custody or adoption motives; defense counsel should be prepared to ask clean, foundational questions aimed at personal knowledge under KRE 602.
• Preserving impeachment via prior inconsistent statements: The case spotlights the practical hurdles of KRE 613 and KRE 801A. To use a third-party witness to impeach and to get prior inconsistent statements in substantively, counsel must put the statement to the declarant with sufficient specifics (time/place/persons present) to lay a KRE 613 foundation.
• Guilt-phase impact testimony: The opinion narrows Alderson to its facts, signaling that isolated, minimal references with little detail will likely not meet the palpable-error threshold—though prosecutors should avoid eliciting impact evidence in the guilt phase to minimize risk.
• Unanimity instructions: Trial courts can continue to use “bare-bones” instructions so long as each count includes enough distinguishing descriptors (location, timeframe, attendant circumstances) to identify a unique incident supported by the evidence. This is especially important in multi-incident child sex-abuse prosecutions.
• Incarceration fees: The decision provides a roadmap for post-2022 practice: sentencing courts continue to have jurisdiction and statutory authority to impose jail fees, with payments directed by court order. Counties and jailers should still look to court orders rather than unilateral billing to avoid Jones-type vulnerabilities.

The Dissent’s View

Justice Thompson would reverse for a new trial, concluding the trial court’s evidentiary rulings collectively denied Bowlin his Sixth Amendment right to present a defense. The dissent emphasizes:

• The constitutional dimension of excluding core defense evidence requires the Chapman “harmless beyond a reasonable doubt” standard, not ordinary harmless error.
• The KRE 613/KRE 801A pathway (“Jett rule”) could have allowed Choate’s testimony as substantive evidence if the proper foundation had been permitted, because S.H. testified and could have been confronted with specific prior inconsistent statements.
• The trial court’s rulings repeatedly foreclosed the foundational questions, making it unfair to blame defense counsel’s supposed failure to lay the groundwork.

The dissent thus views the errors as structural to Bowlin’s defense theory—motive to fabricate tied to custody—and not harmless beyond a reasonable doubt.

Complex Concepts Simplified

• Right to present a defense: A criminal defendant has a constitutional right to offer their own evidence and to cross-examine the prosecution’s witnesses; however, that right operates within the rules of evidence (relevance, hearsay, foundation).
• Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Unless an exception applies, hearsay is inadmissible. Kentucky permits some prior inconsistent statements to be used substantively if KRE 613 foundation is laid and the declarant testifies (KRE 801A).
• Avowal (offer of proof): When evidence is excluded, counsel may place into the record what the witness would have said. Appellate courts use avowals to assess prejudice/harmlessness.
• Harmless error: Even if a mistake occurred, a conviction will not be reversed unless the error likely affected the verdict (“substantially swayed” it). Constitutional errors can trigger a stricter standard (“harmless beyond a reasonable doubt”).
• Palpable error (RCr 10.26): An unpreserved error that is so fundamental it threatens the fairness of the proceeding and creates a probability of a different result. It is a high bar.
• Jury unanimity: Jurors must agree on the same criminal act for each count. In multi-incident cases, instructions must identify each offense with enough detail (time/place/circumstances) to ensure the jury is unanimous on the same event.
• “Bare-bones” instructions: Kentucky favors concise instructions that state the elements and identify offenses by basic facts, leaving jurors to apply the evidence they heard.
• Incarceration fees: Kentucky statutes authorize courts to order defendants to reimburse counties for jail costs. After 2022, courts must harmonize KRS 441.265 with KRS 532.352 and 532.358 to preserve judicial authority and avoid absurd results.

Conclusion

Bowlin’s case is a rich study in the tension between a defendant’s right to present a defense and the constraints of the evidence code. The Supreme Court identified trial-level missteps—excluding a known defense witness without bad faith or prejudice and unduly curbing cross-examination into motive. Still, it held those errors harmless given hearsay barriers and the strength of the remaining record. On the guilt-phase/victim-impact front, the Court cabin’s Alderson’s reach, signaling that truly minimal references will not usually justify reversal.

Most significantly for forward-looking practice, the Court confirms that the 2022 amendment to KRS 441.265 did not divest sentencing courts of authority to impose incarceration fees. By harmonizing KRS 441.265 with KRS 532.352 and 532.358, the opinion preserves a coherent sentencing framework in which reimbursement is imposed and structured by the sentencing court, avoiding the statutory absurdities warned against in Schoenbachler and Cosby.

Although unpublished and not binding under RAP 40(D), this decision offers persuasive guidance for trial judges and practitioners: permit reasonable exploration of bias and motive without demanding documentary foundations that Kentucky law does not require; ensure multi-count instructions include basic but clear differentiators; and treat incarceration fees as squarely within the court’s sentencing toolbox post-2022.

Key takeaways

• Late-disclosed defense witnesses should not be excluded absent bad faith or prejudice; exclusion may still be harmless if the proffered evidence is inadmissible (e.g., hearsay).
• Cross-examination into potential custody-related motive is relevant and should be allowed based on personal knowledge; Kentucky law does not require document-based foundation to ask about a party’s own custody activities.
• Minimal, non-inflammatory victim-impact references during the guilt phase rarely satisfy palpable-error review; prosecutors should nevertheless avoid such questioning.
• “Bare-bones” instructions can satisfy unanimity if they differentiate each count by basic evidentiary identifiers tied to the proof.
• Post-2022, sentencing courts still have statutory authority to order incarceration-fee reimbursement; KRS 441.265 must be read in harmony with KRS 532.352 and KRS 532.358.

Publication Note

This opinion is designated “Not to be Published” under RAP 40(D) and may not be cited as binding precedent in Kentucky courts. It may, however, be cited for consideration where no published opinion adequately addresses the issue, provided the opinion is tendered as required by RAP 40(D).