“Agreed-Order Waiver” and the Boundaries of KRE 404(b): A Commentary on Robert Geary v. Commonwealth of Kentucky

1. Introduction

In Robert Geary v. Commonwealth of Kentucky, the Supreme Court of Kentucky (unpublished, Aug. 14 2025) affirmed Robert Geary’s convictions for first-degree sexual abuse and two counts of promoting a sexual performance by a minor under sixteen, imposing a 25-year sentence. The Court addressed four preserved errors and a claim of cumulative error:

• Denial of directed verdict on the “promoting” counts;
• Admission of Geary’s 2009 misdemeanor sexual-misconduct conviction;
• Exclusion of cross-examination about the victim’s prior false allegation;
• Refusal to instruct on the lesser offense of possession of child-sexual-abuse material.

Although the opinion is “not-to-be-published,” it still clarifies several recurring evidentiary questions. Most notably, the majority holds that a defendant who signs an agreed order permitting the Commonwealth to reference a prior conviction generally waives appellate review of its admissibility—an “agreed-order waiver” principle. A separate concurrence criticises this waiver analysis, offering a richer discussion of the modus operandi exception under KRE 404(b). Taken together, the decision provides fresh guidance on (i) the quantum of proof needed for “promoting” a minor’s sexual performance, (ii) the fine line between permissible and impermissible propensity evidence, and (iii) jury-instruction thresholds for lesser-included offenses.

2. Summary of the Judgment

The Court unanimously (Lambert, C.J., writing) affirmed on all grounds. Key holdings include:

1. Directed-Verdict Standard: Viewing the evidence most favorably for the Commonwealth, the jury could reasonably find that Geary “produced” the illicit photographs, even though only thumbnails were on his new phone.
2. Prior Misdemeanor Conviction: Because Geary signed an agreed order allowing the conviction to be used “for prosecuting cross-examination,” he was estopped from challenging its admission; alternatively, the conviction satisfied KRE 404(b) as modus operandi, motive, and absence-of-mistake evidence.
3. Victim Cross-Examination: An earlier, non-sexual prank allegation by the victim was irrelevant and inadmissible under KRE 608(b).
4. Lesser-Included Instruction: Possession of child-sexual-abuse material (KRS 531.335) is not a lesser-included offense of promoting a sexual performance (KRS 531.320).
5. Cumulative Error: With no individual error, cumulative error doctrine does not apply.

Judge Nickell (joined by Judge Thompson) concurred in result only, disputing (a) that Geary waived the 404(b) issue and (b) that the prior conviction qualified as modus operandi. Nevertheless, he deemed any error harmless in light of “overwhelming evidence,” principally the corroborating photographs.

3. Analysis

3.1 Precedents Cited and Their Influence

• Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) – Sets the directed-verdict lens: assume Commonwealth’s evidence true and ask whether guilt would be “clearly unreasonable.” The Court applied this to uphold the promoting counts.
• Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008) – Establishes “audience of one” sufficiency for child-sexual-performance charges. Vital for treating a single clandestine photograph as a “performance.”
• Riggle v. Commonwealth, 686 S.W.3d 105 (Ky. 2023) & Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994) – Framework for KRE 404(b) admission: relevance, probative value, and prejudice balancing. The majority leans on these to justify admitting the 2009 conviction.
• Robey v. Commonwealth, 943 S.W.2d 616 (Ky. 1997) – Concurrence cites this to argue that a single remote conviction (16 years) is too attenuated for modus operandi; here, the gap was 14 years.
• Commonwealth v. Swift, 237 S.W.3d 193 (Ky. 2007) – Governs when a lesser-included instruction is required. Court uses it to decline a possession instruction.

3.2 Court’s Legal Reasoning

1. “Promoting” via Photography: KRS 531.320 requires producing or directing a performance “which includes sexual conduct by a minor.” A photograph qualifies as a “performance” (KRS 531.300(2)), and bare breast exposure is “sexual conduct.” Expert testimony that the thumbnails likely migrated from Geary’s old phone allowed a reasonable inference that he was the producer.
2. Waiver through Agreed Order: By signing an agreed order permitting cross-examination about the 2009 conviction, Geary “invited” the evidence; estoppel doctrine (Quisenberry & Gray) bars complaint on appeal. The majority therefore skips an exhaustive 404(b) analysis, though it briefly finds relevance (similar nighttime, mother’s home, sleeping occupants), probative value, and acceptable prejudice.
3. Excluding False-Allegation Cross-Examination: The prior “taping to a bed” incident was neither sexual nor probative of truthfulness about sexual abuse; under KRE 608(b) and relevance rules (KRE 401–402) it was inadmissible.
4. No Lesser-Included Instruction: Possession (KRS 531.335) contains a knowledge element and is not embedded within promoting (KRS 531.320). The jury could not rationally convict of possession if it doubted production but also believed Geary had no knowledge—a logical disconnect.

3.3 Impact on Future Litigation

Even though unpublished, post-2003 Kentucky opinions may be cited for persuasive value. The decision matters because it:

• Signals that an agreed order concerning prior-bad-act evidence will likely foreclose appellate relief (reinforcing contractual principles in criminal procedure).
• Confirms that a single photograph of a minor’s breast, stored only as a thumbnail, suffices to meet the statutory definition of a “sexual performance” promoted by the accused.
• Shades the debate on modus operandi: the concurrence warns against over-expanding similarity tests, giving defense counsel ammunition in future 404(b) fights.
• Clarifies that possession of child-sexual-abuse images is not a lesser-included of promoting a sexual performance—guidance that will streamline jury-instruction conferences.

4. Complex Concepts Simplified

• Directed Verdict: A request to end the case early because, even if the jury believed all prosecution evidence, no reasonable juror could convict. Denial means the case proceeds to the jury.
• KRS 531.320 vs. KRS 531.335:
  • 531.320 – Producing or promoting a “performance” that shows sexual conduct by a minor.
  • 531.335 – Simply possessing or viewing child-sexual-abuse images, knowing what they depict.
• Thumbnail Image: A miniature copy automatically generated by phones; absence of metadata can hide the originating device.
• KRE 404(b): Generally bans evidence of other crimes to show propensity, but allows it for limited purposes (motive, intent, scheme, etc.). “Modus operandi” is one narrow sub-exception requiring “signature” similarity.
• KRE 608(b) & 609: Governs attacking a witness’s credibility through prior acts; 608(b) covers bad acts not resulting in conviction, 609 covers certain convictions.
• Waiver/Invited Error: A party who agrees to or induces a trial ruling cannot later complain about it on appeal.

5. Conclusion

Geary offers three principal takeaways. First, photographic evidence—even fragmentary—can satisfy Kentucky’s “promoting a sexual performance” statute, reinforcing prosecutors’ reliance on digital-forensic inferences. Second, defense counsel must treat agreed evidentiary orders with heightened caution; once signed, they will likely foreclose appellate relief under the invited-error doctrine. Third, the opinion (and the robust concurrence) highlights ongoing tension around modus operandi evidence: how similar, how recent, and how numerous prior acts must be before they pass KRE 404(b) scrutiny. While unpublished, the case supplies persuasive authority on these points and will doubtless surface in future Kentucky trial briefs where prior-bad-act evidence, directed-verdict motions, or lesser-included instructions are at stake.