Robert Geary v. Commonwealth of Kentucky

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RENDERED: AUGUST 14, 2025

NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0132-MR

ROBERT GEARY APPELLANT

V.

ON APPEAL FROM MEADE CIRCUIT COURT

HONORABLE KENNETH H. GOFF, II, JUDGE

NO. 22-CR-00028

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Meade Circuit Court jury convicted Robert Geary ("Geary") of two counts of promoting a sexual performance by a minor (under 16 years old) and one count of first-degree sexual abuse. The trial court followed the jury's recommendation and sentenced Geary to twenty-five years' imprisonment. He now appeals as a matter of right.¹

On appeal, Geary raises four issues of trial error. First, Geary argues that the trial court erred in denying his motion for a directed verdict on each count of promoting a sexual performance by a minor (under 16 years old).

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Second, Geary argues that the trial court erred in admitting his prior misdemeanor conviction of second-degree sexual abuse. Third, Geary argues that the trial court erred in refusing to allow him to cross-examine the victim about her prior false allegations of abuse; and fourth, that the trial court erred in excluding a lesser included instruction. Each claim of error was properly preserved. Additionally, Geary argues that there was cumulative error. Finding no error, we affirm.

I. BACKGROUND

In January 2022, Geary and his girlfriend, Samantha, lived with his mother, Barbara Geary ("Barbara") in her one-bedroom apartment in Brandenburg, Kentucky, for about four months. Both Geary and Samantha had children and shared custody with others. Occasionally, they had custody of their children on the same weekend. January 14 through 16, 2022, was one such weekend. Samantha and Geary each arranged for one of their children to stay elsewhere that weekend. Two girls, A.L., Samantha's thirteen-year-old daughter (the victim), and K.G., Geary's minor daughter, spent the weekend with them. The blended family group went to Lumber Jack's²on Friday evening to eat and watch Geary play cornhole. As the evening grew late, Samantha left Geary at Lumber Jack's and took the girls back to the apartment. It is unclear exactly what time Geary returned to the apartment.

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For context, the apartment's bedroom featured a set of bunk beds along one wall and a queen-size bed along the opposite wall. A nightstand separated the two beds. A.L. and K.G. slept together in the bottom bunk. Samantha and Geary shared the queen-size bed. Geary's mother slept on the couch in the living room, just a few feet away.

A.L. said that she woke up to Geary pulling her shirt up, touching her breast, and taking photographs of her. He then placed her hand around his penis and moved it around. He also put his hands down the front of her pajamas, began rubbing her vagina, and then put his fingers inside of her. She pretended to be asleep.

A.L. revealed the abuse to her best friend, a child with whom she often stayed, and asked her not to tell anyone. However, the friend informed her mother, who notified school personnel. On January 21, an investigation ensued, leading detectives to Geary's home. Geary willingly provided investigators with his cellphone and the passcode. Investigators discovered photographs on Geary's phone showing A.L. lying on the bottom bunk bed with her shirt pulled up, exposing her breasts. K.G. was lying beside her, facing away from A.L. The pictures depicted A.L. wearing the clothing she and others described her wearing that night—a grey t-shirt and plaid pajama pants. The phone was examined by law enforcement and forensic experts who determined that the photos on the phone were not taken with Geary's phone. Instead, they

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were thumbnails³and lacked the metadata to provide more information about the pictures.

On March 18, 2022, a Meade County Grand Jury indicted Geary on the charges of first-degree unlawful transaction with a minor (under 16 years old) and first-degree sexual abuse. A superseding indictment, filed on June 12, 2023, charged Geary with two counts of promoting a minor (under 16 years old) in a sexual performance, first-degree unlawful transaction with a minor (under 16 years old), first-degree sexual abuse, and two counts of possession or viewing of matter portraying a sexual performance of a minor. At trial, the Commonwealth called A.L., the lead investigator, and an expert witness. Geary called Samantha, K.G., Barbara, and another expert. He also provided testimony. Geary, Samantha, K.G., and Barbara emphatically denied A.L.'s abuse allegations. They testified that K.G.'s glucose monitor sounded several times during the night in question, and each time, they all woke up to attend to K.G. A.L. also recalled K.G.'s glucose monitor sounding but stated it went off two or three times that night before the alleged abuse. However, she did not recall the specific times.

The events of the following morning are also disputed. A.L. testified she woke up the next day and immediately called her dad to pick her up. In contrast, everyone else in the apartment testified that Geary, Samantha, and the girls woke up, showered, got dressed, and traveled for two and a half hours

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to Williamsburg for a cornhole tournament featuring Geary, noting that A.L. was cheerful and singing. Samantha proposed that they stop to pick up Zach, A.L.'s boyfriend, anticipating that the girls would grow bored merely watching the tournament. A.L. testified that the trip to Williamsburg occurred the weekend before.

Both parties presented expert testimony. The Commonwealth's expert testified that the two images she found on Geary's phone had a creation date of January 16, 2022, and an access date of January 19, 2022, and that the device was restored from a backup on January 19, 2022. Both experts stated this was consistent with turning in an old phone and restoring the backup on a new one. Geary's expert also offered other scenarios.

Samantha and Geary testified that on January 19, he traded in his phone and got a new one. Geary denied taking or seeing the photos on his new phone and testified that the police did not ask him for his old phone. Samantha also testified that A.L. was a pathological liar and often lied to get what she wanted. Samantha believed that A.L. was upset after learning on January 20 that she and Geary were getting their own place and A.L. would be spending less time at her best friend's house.

A jury found Geary guilty of first-degree sexual abuse and two counts of promoting a sexual performance by a minor (under 16 years old).⁴The parties agreed to dismiss both counts of possession of matter portraying a sexual

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performance by a minor. On March 11, 2024, the trial court sentenced Geary to twenty-five years' imprisonment. This appeal followed. Additional facts are included below as necessary.

II. ANALYSIS

A. The trial court did not abuse its discretion in denying Geary's motion for a directed verdict.

Geary asserts that the trial court erred by not granting his motion for a directed verdict on the two counts of promoting a sexual performance by a minor (under 16 years old). Geary preserved this issue by filing a motion for a directed verdict at the close of the Commonwealth's case and renewing said motion at the end of all proof. We disagree that the trial court erred. In considering a defendant's motion for a directed verdict, the trial court must consider the evidence, presume the Commonwealth's proof is true, draw all reasonable inferences in favor of the Commonwealth, and leave questions of weight and credibility to the jury. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). As such, on appeal, we must determine whether "it would be clearly unreasonable for the jury to find guilt." Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983)).

After all evidence was presented, Geary moved for a directed verdict, arguing that A.L.'s testimony was inconsistent and that the Commonwealth's evidence was insufficient to submit the case to the jury. He further contended that the statute required the minor to perform an act at the adult's request, which had to be conducted by the minor and not the perpetrator. Geary maintained that a photograph is not enough. We disagree.

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A person promotes the sexual performance by a minor when, "knowing the character and content thereof, he . . . produces, directs, or promotes any performance which includes sexual conduct by a minor." KRS⁵531.320(1). Under KRS 531.300(2), a "performance" includes a photograph. And "sexual conduct by a minor" includes "[t]he exposure, in an obscene manner, of . . . the female breast." KRS 531.300(4)(d). Content is obscene not because a child is doing something obscene but because, to the audience, "the predominant appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors[.]" KRS 531.300(1). We've noted previously: "[C]learly, common sense dictates that there can be an audience of one." Clark v. Commonwealth, 267 S.W.3d 668, 676 (Ky. 2008) (quoting Woodard v. Commonwealth, 219 S.W.3d 723, 727 (Ky. 2007) overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky. 2010) (citation omitted)). Additionally, Geary argues that the photographs were not taken with his phone. Evidence presented at trial revealed that Geary had traded in his phone for a new one between the time of the abuse and when the police collected his cellphone. Even though Geary did not take the photographs with the phone he gave to the police, the experts testified that it is plausible to believe or infer that he took them on his old phone and transferred them to the new phone when it was set up. Moore v. Commonwealth, 462 S.W.3d 378, 388 (Ky. 2015)("A jury verdict may properly be based upon reasonable inferences drawn from the

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evidence."). A reasonable jury could conclude that Geary took or produced the obscene photographs of A.L. for his prurient interest or sexual desire. Thus, the trial court did not err in denying Geary's motion for a directed verdict.

B. The trial court did not err in admitting Geary's misdemeanor conviction into evidence.

Geary asserts that the trial court erred in allowing admission of irrelevant and prejudicial evidence of a 2009 misdemeanor conviction of sexual misconduct. In June 2023, after the superseding indictment, the Commonwealth gave notice under KRE⁶404(c) of its intent to introduce said conviction, alleging that Geary engaged in similar illegal sexual acts with a minor.⁷The Commonwealth indicated that the evidence would be used to show motive, intent, plan, knowledge, modus operandi, or absence of mistake or accident. Geary objected and moved in limine to exclude it. Said motion was noticed for January 5, 2024, the day of the final prehearing conference.⁸That same day, Geary's attorney signed an agreed order allowing the Commonwealth to cross-examine Geary about the prior conviction.⁹

Throughout cross-examination, Geary continued to object to the Commonwealth's attempts to question him about the conviction, arguing that

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it constituted improper cross-examination. The Commonwealth initially asked Geary if the incident with A.L. was a mistake. The trial court sustained Geary's objection. The Commonwealth then asked Geary specific questions regarding the facts that led to the 2009 conviction: did it happen at night, at his mother's house, while others were asleep, and was someone else in bed with the alleged victim? Geary answered each question in the affirmative.

On redirect examination, Geary explained the 2009 incident more specifically. He testified that he was 19 years old, and the alleged victim was 16; that they were "cousins," were in a relationship, and had sexual intercourse more than once. He said he was told to plead guilty to a misdemeanor because his record could be expunged. He was not recommended for sex offender treatment.¹⁰

On appeal, Geary concedes that the parties entered an agreed order regarding the admissibility of the misdemeanor conviction. However, he argues that the Commonwealth's cross-examination was inappropriate because he did not raise the issue on direct examination. He argues that the prior misdemeanor was not offered to prove a common scheme or plan. Rather, it was offered to show a modus operandi for the purpose of proving motive, intent, knowledge, and the absence of mistake or accident. He argues, however,

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that to prove the elements of a subsequent offense by the 2009 misdemeanor conviction, the facts surrounding the prior misconduct must be so "strikingly similar" to the charged offense as to create a reasonable probability that the acts were committed by the same person and/or accompanied by the same mental state. Absent this striking similarity, the misdemeanor conviction proves only a criminal disposition and is inadmissible. To support this argument, Geary contends that the facts were not strikingly similar because he was 19 and the alleged victim was 16, and the fact that they engaged in sexual intercourse, which A.L. did not allege. A.L. alleged sexual contact. Geary additionally argues on appeal that any probative value was substantially outweighed by the danger of undue prejudice, citing KRE 403, and argued that the trial court abused its discretion in allowing the Commonwealth to introduce the 2009 conviction.

The Commonwealth asserts that Geary engaged in similar illegal sexual misconduct in 2009, and it introduced the evidence to demonstrate modus operandi and that proper cross-examination occurred. Furthermore, the Commonwealth contends that Geary waived this issue by signing the agreed order and cannot now claim error. We agree. In Quisenberry v. Commonwealth,

336 S.W.3d 19, 37 (Ky. 2011) (citation omitted), this Court held that "[A] party is estopped from asserting an invited error on appeal." See also Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006) (citation omitted) ("A defendant cannot complain on appeal of alleged errors invited or induced by himself[[.]").

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"Trial courts must admit evidence under KRE 404(b) 'cautiously, with an eye towards eliminating evidence which is relevant only as proof of an accused's propensity to commit a certain type of crime.'" Riggle v. Commonwealth, 686 S.W.3d 105, 112 (Ky. 2023) (quoting Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994)). In determining admission under KRE 404(b), "the trial court must consider whether the evidence is relevant, probative of the prior bad act, and whether its potential prejudice substantially outweighs any probative value." Riggle, 686 S.W.3d at 112. We review the trial court's evidentiary rulings for an abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

KRE 404(b) generally prohibits the introduction of "[e]vidence of other crimes . . . to prove the character of a person to show action in conformity therewith." However, the rule outlines two exceptions. First, other acts evidence is admissible if offered for "some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence or mistake or accident . . ." KRE 404(b)(1). Second, if the evidence of other act(s) is

"so inextricably intertwined with other evidence essential to the case that the separation of the two could not be accomplished without serious adverse effect on the offering party," the evidence may be admitted. KRE 404(b)(2).

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The Court must consider relevance, probative value, and prejudice to determine whether evidence of other bad acts is admissible under KRE 404(b). Bell, 875 S.W.2d at 889-91. Geary argues on appeal that cross-examination regarding the 2009 conviction was unduly prejudicial and that the trial court abused its discretion by allowing it.

First, the evidence of prior sexual misconduct was relevant under KRE

401. "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE

401. Evidence of a prior incident of sexual misconduct with a minor at night, at his mother's house, while others were sleeping nearby, tends to make it more probable that, on the day in question, he committed a similar act. As such, the evidence was relevant. All relevant evidence is admissible under KRE 402. Next, we consider whether the evidence was probative. "[E]vidence of other bad acts is sufficiently probative if the jury could reasonably infer that the prior bad acts occurred and the [Geary] committed such acts." Howard v. Commonwealth, 595 S.W.3d 462, 476 (Ky. 2020) (internal quotation marks omitted) (quoting Parker v. Commonwealth, 952 S.W.2d 209, 217 (Ky. 1997)). Geary testified and admitted that he committed the prior offense of sexual misconduct and offered the jury an explanation of why he pleaded guilty. Thus, the jury could reasonably infer that the prior bad act occurred. Finally, we must weigh the evidence's prejudicial nature against its probative value. Bell, 875 S.W.2d at 889. Although relevant, evidence may be

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excluded if the danger of undue prejudice substantially outweighs its probative value. KRE 403. "A proper balancing under KRE 403 requires that a trial court consider three factors: the probative worth of the evidence, the probability that the evidence will cause undue prejudice, and whether the harmful effects substantially outweigh the probative worth." Yates v. Commonwealth, 430 S.W.3d 883, 897 (Ky. 2014) (citing Barnett v. Commonwealth, 979 S.W.2d 98, 100 (Ky. 1998)).

The evidence of Geary's prior sexual misconduct conviction was undoubtedly prejudicial, particularly considering that it occurred well over a decade earlier. However, we must determine whether that prejudice was

"unnecessary and unreasonable." Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky. 2000) (citing Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977)). The Commonwealth produced three witnesses at trial: A.L., the lead investigator (who introduced the two photographs), and an expert. Geary denied all allegations and provided evidence that A.L. was a pathological liar. He could not satisfactorily explain how the two photos ended up on his phone. Ultimately, the proof of the prior sexual misconduct demonstrated evidence of motive, intent, plan, or modus operandi. Admission of the evidence did not constitute abuse of discretion. Arguably, even if said admission was an abuse of discretion, the agreed order minimized it to harmless error.

C. The trial court did not abuse its discretion in preventing the cross- examination of A.L. about prior false abuse allegations.

Geary claims that he should have been allowed to cross-examine A.L. regarding prior false abuse allegations. He argues these accusations were

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pertinent to her credibility. The Commonwealth asserts this evidence was irrelevant, and the trial court correctly denied its admission during the trial. During the trial, Geary sought to cross-examine A.L. about a prior allegation. The Commonwealth objected because A.L. was nine years old when she made the allegation against her brother and cousins, and because it did not involve sexual conduct. There was some disagreement between the parties over whether A.L. admitted to lying in her forensic interview or whether she had claimed it was nothing and had been blown out of proportion. The trial court allowed A.L. to testify by avowal before ruling. She testified that her brother and two of her cousins had taped her to a bed and written on her face with a Sharpie. She admitted that the allegations were false. After hearing A. L.'s avowal testimony, the trial court denied Geary's request to cross-examine her about the prior statement.

Geary contends that A.L.'s previous false abuse allegation was admissible to impeach her credibility and truthfulness. He contends this false allegation was relevant to her truthfulness, like testimony of character under KRE 608(a). He contends that evidence of a prior crime may be used to impeach a witness, even though it does not relate to the witness's trial testimony. KRE 609. As noted supra, we review the trial court's evidentiary rulings for an abuse of discretion. Goodyear Tire, 11 S.W.3d at 577. "The test for abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." English, 993 S.W.2d at 945.

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Under KRE 608(b), extrinsic evidence of specific instances of a witness's conduct meant to attack or support the witness' credibility may not be admitted. But, at the trial court's discretion, they may be inquired into during cross-examination if they are probative of the witness' truthfulness or untruthfulness. Id. There must be a factual basis for the inquiry. Id. Geary asserts that he should have been permitted to cross-examine A.L. using the prior allegation. However, KRE 608(b) evidence must still be relevant to be admissible. KRE 402.

"Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE

401. A.L.'s allegation when she was nine years old about her brother and cousins taping her to a bed and using a Sharpie on her face was a prank, and not an allegation of sexual misconduct. This fact did not determine whether the current allegation was more or less probable than it would have been without the evidence. Notably, there was other evidence offered by both the Commonwealth and Geary regarding A.L.'s truthfulness. The lead investigator testified that there were inconsistencies in A.L.'s statements, and her mother testified that she was a pathological liar. Thus, we find this evidence was not relevant to A.L.'s truthfulness about the sexual abuse allegations against Geary. Because we find that the evidence was not relevant, the trial court did not err in excluding it.

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D. The trial court did not abuse its discretion in declining to give jury instructions for lesser-included offenses.

Geary asserts that the trial court erred by not giving a lesser-included offense instruction on possession of matter portraying a sexual performance by a minor (under 16 years of age). He requested an instruction under KRS 531.335, possession or viewing of matter portraying a sexual performance of a minor, which is a Class D felony. The trial court and counsel discussed jury instructions at length.

While discussing the jury instructions, defense counsel argued that the facts supported a charge of possession of child sexual abuse material as a lesser-included offense to promoting a sexual performance by a minor. The Commonwealth stated that it was not a lesser-included offense. Still, it acknowledged that the jury could find that he possessed child sexual abuse material instead of producing it and did not initially argue against the instruction. After further research, the Commonwealth notified the trial court that a possession instruction requires actual knowledge, which was not present in this case. The trial court did not find any lesser-included instruction available for the charge.

We review a trial court's ruling regarding jury instructions for abuse of discretion. Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009) (citation omitted). It is the trial court's duty to instruct the jury "on the whole law of the case." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citations omitted). The general rule is that if requested, a trial court must give a lesser- included offense instruction if, but only if "considering the totality of the

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evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.'" Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)). Possession of matter portraying a sexual performance by a minor is not a lesser included offense of promoting a sexual performance by a minor (under 16 years old). To be guilty of possession of matter portraying a sexual performance by a minor, a person, "having knowledge of its content, character, and that the sexual performance is by a minor . . . [k]nowingly has in his . . . possession or control any matter which visually depicts an actual sexual performance by a minor person[.]" KRS 531.335(1)(a). A person promotes the sexual performance by a minor when, "knowing the character and content thereof, he . . . produces, directs, or promotes any performance which includes sexual conduct by a minor[.]" KRS 531.320(1). Sexual conduct by a minor includes the exposure of the unclothed female breast. KRS 531.300(4)(d). And the word "promote" under the statute is defined as "prepare, publish, print, procure, or manufacture[.]" KRS 531.300(3).

Geary contends the jury could have easily concluded that he only possessed the two photographs under KRS 531.335 and did not create or manufacture them under KRS 531.320. He testified he did not know the photos were on his phone and that they were never published to anyone. Both experts testified that the origin of the pictures was unknown, but the thumbnails were consistent with the transfer of data from one phone to another.

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A.L. testified that Geary photographed her with her shirt raised while She pretended to be asleep. These images were then found on Geary's phone. Geary testified that he did not take the photographs and did not know they were on his phone or how they got there. Considering the totality of the evidence, if the jury had reasonable doubt as to Geary's guilt of promoting, they would have found him not guilty. The jury could not believe beyond a reasonable doubt that he was guilty of possession, given that he testified that he did not know the photographs were on his phone. So, a lesser-included instruction was not warranted. The trial court did not abuse its discretion.

E. Cumulative error did not occur.

In the event this Court were to hold that none of the foregoing alleged errors were individually reversible, Geary requests that we reverse based on cumulative error. Under the cumulative error doctrine, multiple errors, which are harmless on their own, cumulatively render the trial fundamentally unfair and require reversal. This Court has "found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). "If the errors have not 'individually raised any real question of prejudice,' then cumulative error is not implicated." Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (quoting Brown, 313 S.W.3d at 631). Accordingly, because none of Geary's allegations constituted reversible error, the cumulative error doctrine does not require that we reverse his conviction.

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III. CONCLUSION

For the reasons stated above, we affirm the judgment of the Meade Circuit Court.

All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, and Keller, JJ., concur. Nickell, J., concurs in result only by separate opinion in which Thompson, J., joins.

NICKELL, J., CONCURRING IN RESULT ONLY: Respectfully, I concur in result only and write separately to maintain consistency with my prior views on waiver and the modus operandi exception to KRE 404(b). See Knox v. Commonwealth, 2022-SC-0384-MR, 2024 WL 3049799, *11-12 (Ky. June 13, 2024) (Nickell, J., concurring in part, dissenting in part); Jordan v. Commonwealth, 2022-SC-0288-MR, 2023 WL 8639367, *13-16 (Ky. December 14, 2023) (Nickell, J., dissenting). In my estimation, Geary did not waive appellate review of the admissibility of his 2009 misdemeanor conviction for sexual misconduct by entering into the agreed order. Moreover, I would hold the trial court abused its discretion by admitting this evidence under KRE 404(b). Nevertheless, I agree with the majority that any error in this regard was harmless, albeit for different reasons.

First, as the majority correctly observes, the circumstances surrounding the agreed order of January 5, 2024, are confusing and unclear. Ante, at 8 n.9. On June 19, 2023, the Commonwealth provided notice, under KRE 404(c), of its intent to introduce the prior misdemeanor conviction at trial. Geary responded in opposition the next day, June 20, 2023, arguing the