Walter Elliott Haggerty v. Kentucky Bar Association ( 2021 )

RENDERED: SEPTEMBER 30, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0366-MR
DYLAN TYLER MINCH APPELLANT
ON APPEAL FROM MADISON CIRCUIT COURT
V. HONORABLE JAMES D. ISHMAEL, SPECIAL JUDGE
NO. 19-CR-00028
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING
Dylan Tyler Minch appeals as a matter of right from the judgment
imposing a seventy-year sentence for his convictions on forty counts of
possession or viewing of a matter depicting a sexual performance by a minor,
seven counts of the use of a minor under sixteen in a sexual performance, and
one count of sexual abuse of a minor under twelve.1
He argues on appeal that (1) he was denied a fair trial on the sexual
abuse and sexual performance charges because they were tried jointly with the
possession charges; (2) pornographic images that were not connected to the
indicted charges were used improperly as Kentucky Rule of Evidence (KRE)
1 Ky. Const. § 110(2)(b) (“Appeals from a judgment of the Circuit Court imposing
a sentence of . . . imprisonment for twenty years or more shall be taken directly to the
Supreme Court.”).
404(b) evidence against him and rendered his trial unfair; (3) the trial court
erred in denying his motion for a continuance because he needed to review the
KRE 404(b) evidence used against him; and (4) the cumulative effect of these
errors compels reversal. We find it necessary to reverse Minch’s convictions
because the trial court erred in allowing the Commonwealth to use a
voluminous number of unindicted images as KRE 404(b) evidence.
Consequently, we decline to address Minch’s arguments that his conviction
should be reversed on the bases of cumulative error and the trial court’s failure
to grant his motion to continue.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Attorney General’s cybercrimes unit, the unit tasked with monitoring
the internet for child pornography, received a flag from the monitoring system
reporting the location of previously identified child pornography. Detective
Littrell from the AG’s cybercrimes unit received the flag on his computer and
obtained the IP address of the user who was in possession of the material.
Littrell obtained the physical location of that IP address being used at that date
and time. Littrell applied for and executed a search warrant at the Minch
home where he encountered Minch, his wife, and their infant daughter (J.M.).
Minch gave his cell phone and its passcode to Littrell, who then found content
he suspected to be child pornography. Some of the images that Littrell
discovered were images of J.M. taken by the cell phone’s camera.
Detective Bell from the cybercrimes unit conducted a manual
examination of the phone. He found there ten similar images of J.M., all taken
2
within minutes of each other, all depicting her naked. Minch sent a text
containing one of these images to his wife in response to hers informing him
that she was headed home from work. This image showed a naked man—
whose head was not visible—in the bathtub with a naked J.M. And in
response to his wife’s question about whether J.M. had been fed, Minch sent a
second image, this time showing his face and J.M. in the foreground taking her
bottle.
In total, Bell found on Minch’s cell phone what the Commonwealth
alleges to have been 925 files of child sexual-exploitation material. On one of
the Minch home computers, Bell found what the Commonwealth alleges to
have been 4,622 images and 1,005 videos of child sexual exploitation material.
At the end of his investigation, Bell presented his full report to Littrell who
selected some of the images and videos to present to the grand jury.
The grand jury’s original indictment of Minch contained thirty-one
counts, twenty of which were for possession or viewing a matter depicting a
sexual performance by a minor. A superseding indictment contained fifty-one
counts, adding twenty more relating to the child pornography. During the trial,
the Commonwealth moved to dismiss three counts. Ultimately, the jury
convicted Minch of all pending charges and recommended sentences as follows:
forty counts of possession or viewing of a matter depicting a sexual
performance by a minor, for which the jury recommended consecutive five-year
sentences; and seven counts of use of a minor under 16 in a sexual
3
performance, for which the jury recommended consecutive ten-year sentences.
The trial court sentenced Minch to a total of 70 years’ imprisonment.
On appeal, Minch argues that any discussion of the images not
presented to the grand jury and, therefore, not subject to indictment, should
not have been allowed by the trial court because they constitute evidence of
uncharged crimes in violation of KRE 404(b). Minch also asserts that the trial
court should have severed the counts involving J.M. as the alleged victim.
Minch additionally claims that the trial court should have granted his motion
to continue the trial to allow him time to review all these images. Finally, he
urges this Court to find that the cumulative effect of these errors rendered his
trial fundamentally unfair.
II. ANALYSIS
A. The trial court did not err by denying Minch’s motion to sever the
charges related to the images of J.M. for a separate trial.
Minch argues that his trial was rendered unfair because the more
serious charges of his use of a minor under 16 in a sexual performance—the
charges arising from the images he took of himself and J.M naked and in the
bathtub—were not severed from the multiple remaining charges of possession
or viewing of a matter depicting a sexual performance by a minor. Minch
asserts that the jury could not fairly evaluate the evidence against him on the
charges related to the bathtub images2 because of the overwhelming amount of
2 Originally, there were charges related to ten such images with J.M., but the
Commonwealth moved to dismiss three charges. So seven were submitted to the jury.
4
evidence presented against him on the possession-of-child-pornography
counts. He argues that the trial court erred in not severing the bathtub-image
counts for separate trial. We disagree.
Minch was indicted on charges arising from two different sets of images.
One set was of images Minch took using his cell phone camera while he and
J.M. were naked in the bathtub. The other set of images included those
tracked on the internet by investigators as child pornography. While there
were seven separate counts submitted to the jury relative to seven bathtub
images, those images were all essentially the same shot taken seconds apart.
The pictures displayed Minch, with his face not shown, in the bathtub with
J.M. Both Minch and J.M are naked, and J.M is lying vertically, face up across
her father’s genitals. These photos were taken shortly before accompanying
text messages that place these pictures in context of a text-message exchange
between Minch and his wife. The text messages include Minch’s wife informing
him she will be home soon. Minch’s response to his wife’s text was the photo
of him and J.M.—the photo for which he was indicted for sexual exploitation.
The wife then asked via text if J.M. had been fed, and Minch responded with
another image that showed his face along with J.M in the foreground taking a
bottle. The text messages were read to the jury as follows:
J.M’s Mother: About to leave work
Minch: Hurry, you can join us in the tub [Minch attaches picture
of J.M. lying on top of him in the bathtub].
Minch: She has fun
J.M.’s Mother: haha when was the last time she ate?
Minch: Idk you tell me. [Minch sends picture of J.M. holding a
baby bottle still in the bathtub].
J.M.’s Mother: lol wtf?
5
Minch: Hey she’s happy AF. Don’t question it.
J.M.’s Mother: I’m leaving work.
Before trial, Minch sought to sever count 51, the charge of first-degree
sexual abuse, and counts 1-10, the charges of use of a minor in a sexual
performance, from counts 11-50, the charges of possession or viewing of a
matter depicting a sexual performance by a minor.3 The Commonwealth
opposed Minch’s motion, and the trial court held a hearing. The defense
argued that if the counts were severed, the child-pornography charges would
not be relevant to anything at issue in the sexual-exploitation and sexual-
abuse charges but would only serve as unduly prejudicial propensity evidence
in a combined trial. The defense also argued that the Commonwealth had
given the grand jury the opportunity to indict Minch for crimes associated with
the bathtub photos in conjunction with presenting the other images recovered
during the investigation and that the detectives’ grand jury testimony described
the bathtub pictures as otherwise somewhat innocuous. Lastly, the defense
requested the trial court conduct an in-camera review of the bathtub images.
The trial court informed counsel it would consider reviewing them after
researching the law on severance.
In opposing Minch’s severance motion, the Commonwealth argued that
the images for which Minch was charged with sexual exploitation of a child
involved a naked child with visible genitalia and whether this depicted a sexual
performance was a question for the jury. So, the Commonwealth argued, the
3 At trial, three counts of sexual exploitation were dismissed.
6
other pornographic images were relevant to demonstrate Minch was sexually
aroused by children and to show his intent in the creation of the images.
Finally, the Commonwealth argued that if the trial court severed the charges, it
would have to try the same case twice.
The trial court did not issue a ruling at the hearing. At the hearing, the
trial court questioned the Commonwealth and defense counsel about the
nature of the images, the similarity of the offenses, and the potential prejudice
to Minch. Ultimately, the trial court denied the severance motion by written
order but failed to give a factual or legal reason to support its ruling.
At Minch’s trial, the jury heard testimony about child-pornography
culture, the forty indicted images found on Minch’s computer, and the
unindicted images. Littrell testified that images like the ones of Minch and J.M
were typically used as something to exchange for other child pornography.
Minch argues that he was prejudiced because of the charges not being severed.
We will not overturn a trial court’s decision not to sever joint charges
unless we are satisfied that the trial court abused its sound discretion
resulting in prejudice to the defendant.4 Here, we find that the trial court’s
decision was properly supported by law.5 RCr. 6.18 permits offenses to be tried
4 Cohron v. Commonwealth, 306 S.W.3d 489, 493 (Ky. 2010).
5 Minch additionally argues that the trial court’s severance motion should be
reversed because the order failed to make factual findings. It is true that under
Kentucky Rule of Criminal Procedure RCr 8.20(2), when factual issues are involved in
ruling on a motion, the court shall state its essential findings on the record. However,
our finding that severance was properly denied is based on legal conclusions alone, so
we do not need to address whether the trial court’s lack of explanation was error.
7
together if they are of the same or similar character or based upon the same
acts or constituting a common scheme or plan. To be entitled to severance, a
criminal defendant must show that a joint trial would be unduly prejudicial.6
The test for the appellate court of whether joinder was improper is if evidence
from one of the trials, if held separately, would be admissible at the other.7 If
so, joinder will generally not be considered prejudicial, and for the sake of
judicial economy, the charges could be tried together.
In Whaley v. Commonwealth,8 we explained that joinder is proper when,
absent undue prejudice, the charge the defendant wishes to be tried separately
would be admissible as KRE 404(b) evidence during the trial of the other
charges.9 In Williams v. Commonwealth,10 we explained that the trial court did
not err when it allowed the Commonwealth to mention under KRE 404(b)
evidence of pornographic images found in the defendant’s possession if intent
or knowledge is at issue.11 In Williams, the defendant was indicted on six
counts of use of a minor in a sexual performance and one count of distribution
of obscene matter.12 At trial, the Commonwealth sought to admit deleted child
pornography images that were also found on the defendant’s computer.13 We
6 Id.
7 Id.
8 567 S.W.3d 576 (Ky. 2019).
9 Id. at 584.
10 178 S.W.3d 491 (Ky. 2005).
11 Id. at 496-97.
12 Id. at 493.
13 Id. at 496.
8
found that evidence to be properly admitted as the characteristics of the case
made the other pornographic materials “relevant and probative of the issue of
whether photographs taken by Williams constituted a sexual performance.”14
In the present case, we find that the child pornography charges would
have been relevant KRE 404(b) evidence of Minch’s intent to sexually exploit
J.M., so the charges were properly tried together. The current circumstances
are like those in Williams. Here, Minch’s defense was that the images were
simply not sexual exploitation, or in other words, were not pornographic or
taken for sexual gratification. As such, we find Minch’s defense to have made
his purpose in taking the photos highly relevant to his intent to sexually exploit
J.M.
The nature of the images of J.M. are not inherently sexual or exploitative,
and that makes evidence of the surrounding circumstances highly relevant and
probative of Minch’s guilt or innocence. Alongside the introduction of the
image of J.M. lying across Minch’s naked genitalia was testimony by Littrell, a
cybercrimes investigator, relaying how this sort of image is typical of those
circulated among viewers of child pornography. The investigator also testified
that those involved in child pornography customarily offer images in exchange
for images and that the traded images usually do not show the adult’s face.
The jury was told that this image was taken earlier in time than the text
conversation with Minch’s wife.
14 Id. at 497.
9
But the Commonwealth offered no evidence that Minch sent the image to
anyone else or attempted to exchange it for child pornography. Lastly, adding
credibility to Minch’s defense was the introduction of an uncharged and
inherently non-sexual image taken as a conversational image of a naked J.M.
in the bathtub drinking from a baby bottle. The sexual nature of the image
and Minch’s sexual gratification from it, if any, were truly open to question. So
the images for which Minch was indicted were relevant to prove his intent to
sexually exploit J.M. On balance, we conclude that the trial court did not
abuse its discretion when it declined Minch’s request for separate trials
because, if tried separately, the Commonwealth could have used the 40
indicted images and explanatory testimony to show Minch meant to exploit
J.M. sexually.
B. The trial court erred in allowing the Commonwealth to use the
unindicted images as KRE 404(b) evidence, and reversal is
warranted.
Minch argues that the trial court erred when it allowed the
Commonwealth to use the other images—the images found on Minch’s
computer for which the Commonwealth did not seek indictment—as KRE
404(b) evidence against him at trial. The Commonwealth introduced the
existence of the unindicted images ostensibly to counter any defense Minch
might have that the images on his computer were downloaded by mistake or
accident. The defense argued this evidence of unindicted images should be
barred because Minch had not claimed he possessed the indicted images
because of mistake or accident. But the trial court allowed the Commonwealth
10
to use the unindicted images nevertheless to show the 40 indicted images were
not in Minch’s possession by accident. We review a preserved evidentiary issue
like this for abuse of discretion and will only find error if the trial court’s
decision was arbitrary, unreasonable, or unsupported by law.15 If we find the
trial court erred, we then review for whether the error was harmless, or
requires reversal because it rendered the trial unjust.16
The Commonwealth informed the jury in its opening statement that
Minch had on his computer 5,000 unindicted images and videos depicting
child pornography and that it could not present each one of them to the grand
jury. Littrell testified about the unindicted images and relayed that, during
Minch’s arrest, he found hundreds of images of infants and toddlers like those
for which Minch was indicted. The defense objected, arguing that Littrell
improperly labeled the images as pornographic because such a decision rested
with the jury. But the trial court allowed Littrell to testify they met his
investigative standards as pornography. Bell also testified about the
unindicted images and labelled them pornographic. He stated that 925 images
of child sex-abuse material were found on Minch’s phone and that 4,622
pornographic images and l,005 pornographic videos were also found on
Minch’s computer during the investigation. The Commonwealth asked Bell to
repeat those numbers for the jury.
15 Whaley, 567 S.W.3d at 582.
16 Id.
11
We conclude the trial court erred when it allowed the Commonwealth to
introduce the number of unindicted images because those images were not
relevant to anything at issue with respect to the possession charges and their
risk of prejudicial harm substantially outweighed their probative value such
that they could not have been introduced to prove Minch’s exploitation
charges.
In Southworth v. Commonwealth, we found error in the admission of KRE
404(b) evidence for an issue not in genuine dispute.17 Similarly, Minch never
claimed the charged images were on his computer or phone because of mistake
or accident. He essentially admitted responsibility for the possession counts
and instead centered his defense on denying that he sexually exploited or
abused J.M. The unindicted images are not relevant to the possession charges
because they do not have any tendency to make the existence of a fact of
consequence with respect to those charges more probable or less probable than
it would be without that evidence. They simply would only show that Minch
possessed a mountain of child pornography, which is a highly inflammatory,
technically unproven fact that is not probative of his guilt on the 40 charged
counts of possession. Because the unindicted images are not relevant, they
would only be used to paint Minch as a bad actor to the jury, so they were not
admissible under 404(b).
17 435 S.W.3d 32, 49 (Ky. 2014).
12
Further, we said previously in this opinion that the 40 indicted images
were probative to show Minch’s intent to sexually exploit or abuse J.M., but the
unindicted images do not prove anything that the 40 indicted images do not, so
their admission was also improper with respect to the exploitation charges.18
In Hall v. Commonwealth, we discussed a similar evidentiary issue involving
admitting gruesome photographs. We said:
When there is already overwhelming evidence tending to prove a
particular fact, any additional evidence introduced to prove the
same fact necessarily has lower probative worth, regardless of how
much persuasive force it might otherwise have by itself. The
additional evidence does not appreciably ‘advance the ball’ toward
proving that fact. KRE 403 explicitly incorporates this concept by
noting that a trial court is to consider ‘needless presentation of
cumulative evidence’ in deciding whether to admit evidence.19
Therefore, the unindicted images in this matter may have some relevance, but
they have minimal probative value. The diminished probative value considered
on balance with the highly inflammatory nature of the unindicted images
warranted their exclusion.20
18Hall v. Commonwealth, 468 S.W.3d. 814, 823 (Ky. 2015) (“There are three
basic inquiries that the trial court must undertake when determining admissibility of
relevant evidence under Rule 403. First, the trial court must assess the probative
worth of the proffered evidence; second, it must assess the risk of harmful
consequences (i.e., undue prejudice) of the evidence if admitted; and last, it must
evaluate whether the probative value is substantially outweighed by the harmful
consequences.”).
19 Id. at 824.
20 See id. (“In essence, this is another way of saying general gruesomeness by
itself, while prejudicial, is an insufficient ground to keep out relevant evidence; rather,
the gruesomeness must be such that it creates substantial undue prejudice or other
harmful consequences that outweigh the probativeness of the evidence.”).
13
So, while the 40 indicted images would come in as KRE 404(b) evidence,
the opposite is true for the unindicted images. Even in Williams, where the
defendant’s possession of pornographic images was properly admitted to show
intent and knowledge, the trial court still saw it necessary to limit the amount
of other-acts evidence introduced because of its inherently prejudicial nature.
There, the trial court required the Commonwealth to choose between admitting
the other pornographic images found and other past bad acts.21 And, even
after making the Commonwealth choose the form of other-acts evidence, it also
imposed a limit on the number of images introduced.22 Likewise here, while
the indicted images are probative of Minch’s intent to sexually exploit and
abuse J.M., the unindicted images do not prove any additional fact. Their
existence is simply a collateral, prejudicial fact, and so it was error to admit
them at trial.
Additionally, the Commonwealth argues that the unindicted images were
inextricably intertwined with the charged offenses. We disagree. In Metcalf v.
Commonwealth, we explained when the exception to the general rule of
inadmissibility of other-acts evidence applies.23 Relying heavily on The
Kentucky Evidence Handbook’s explanation of the rules of evidence, the Court
stated “the key to understanding this exception is the word ‘inextricably.’ The
21 Williams, 178 S.W.3d at 496. (“The trial judge ruled that the Commonwealth
could introduce the evidence from the third-degree rape or up to six other items in the
computer, but not both. The Commonwealth stated it would choose the latter.”).
22 Id. at 496.
23 158 S.W.3d 740 (Ky. 2005).
14
exception relates only to evidence that must come in because it is so interwoven
with evidence of the crime charged that its introduction is unavoidable.”24 In
Metcalf, we also pointed to Fleming v. Commonwealth, finding the exception to
inadmissibility only applies when “two or more crimes are so linked together in
point of time or circumstances that one cannot be fully shown without proving
the other.”25
In Metcalf, we found the trial court reversibly erred when it allowed the
Commonwealth to introduce improper KRE 404(b) evidence.26 Metcalf had
been indicted of sexual abuse and sodomy of a minor, C.I.27 But the
investigation into Metcalf began when officers received a report of him
videotaping another child, S.K., while she undressed.28 At trial, the
Commonwealth used the information of how the investigation began as
evidence to explain the circumstances surrounding the crime.29 The trial judge
allowed this evidence to be introduced after the Commonwealth argued that the
other-acts evidence–the investigation into S.K.–was inextricably intertwined
with the circumstances of the charged crime.30 We found the information to be
24Lawson, The Kentucky Evidence Law Handbook, § 2.20, at 37 (2d. ed. 1984)
(emphasis added).
25Metcalf, 158 S.W.3d at 743 (citing Fleming v. Commonwealth, 284 Ky. 209,
144 S.W.2d 220, 221 (Ky. 1940)).
26 Id. at 746.
27 Id. at 741.
28 Id. at 742.
29 Id. at 743.
30 Id. at 742.
15
prejudicial collateral information that was unnecessary to be introduced to the
jury because the Commonwealth’s case did not rise and fall on this fact, but
instead the investigating officers’ testimony would have carried the same weight
had they not mentioned the original reason they were investigating Metcalf.31
Because this evidence was introduced to the jury and highly prejudicial to
Metcalf, we reversed the conviction.32
We find the circumstances here to be like Metcalf. It would have been
simple enough for the Commonwealth to not mention the 5,000 unindicted
images because they were not intertwined with his charges of possession or
sexual exploitation and abuse. For example, the investigating officers could
have testified that Minch’s computer was pinged because of the 40 indicted
images without mentioning the total number of allegedly pornographic videos
and images ultimately found. The number of images left uncharged was not a
circumstance necessary for the jury to determine Minch’s guilt or innocence of
the charged crimes. Rather than providing necessary context, as the
Commonwealth argues, the thousands of uncharged pornographic images
provided dramatic evidence of criminal propensity. Its introduction more likely
impelled the jury to conclude that because Minch had thousands of
pornographic images on his computer, he was easily guilty of the 40 charged
counts of possession, of sexually abusing J.M., and of using J.M. in a sexual
31 Id. at 744 (“It would have been a simple matter for Steger and Albritton to
truthfully testify that they came to Appellant's residence to investigate an allegation of
child abuse without mentioning the uncharged videotaping incident.”).
32 Id. at 746.
16
performance. Because the 5,000 images were not intertwined with the
circumstances of the case, it was error to allow the jury to hear about their
existence. Accordingly, no justification exists to admit the 5,000 images.
We next assess whether reversal is warranted because of the erroneously
admitted evidence. And we conclude that it is. Cases involving child
pornography and sexual abuse of children are highly emotional and capable of
inflaming the jury. So the trial court’s role as a gatekeeper monitoring the
admission of unduly prejudicial evidence is of upmost importance.33 Here, as
mentioned previously, there was evidence that Minch sexually abused and
exploited J.M. and also evidence that he did not. It was for the jury to decide
what that evidence means. But our evidence rules contemplate that the jury
must make that decision without being potentially swayed by exposure to
prejudicial propensity evidence. As stated by The Kentucky Evidence
Handbook,
In practice, . . . this expanded idea of contextual relevance often paves
the way to prove acts that are anything but inseparable [from] the
charged crime, and this label can easily become a catchall for admitting
other acts that are far more prejudicial to the defendant than useful in
determining guilt of the charged offense.34
Even though the unindicted images were not shown to the jury, we still
cannot be sure it chose to convict Minch of abuse and exploitation because it
truly thought he was guilty after considering the jury was also exposed to
33 Id. at 745 (KRE 404(b)(2) “poses a special threat to the law's overriding
objective of protecting defendants against the prejudice that is inherent in evidence of
other crimes.”).
34 Lawson, The Kentucky Evidence Law Handbook, § 2.25, at 139 (2d. ed. 1984).
17
irrelevant, prejudicial other-acts for which the jury may have felt the need to
impose punishment. Multiple convictions for possession of child pornography,
which is a Class-D felony, carry a twenty-year sentence,35 but when joined with
a sexual exploitation conviction, the defendant becomes eligible for a 70-year
sentence.36 Here, the jury recommended a 295-year sentence. The statutory
cap limited Minch’s sentence to 70 years’ imprisonment. The nature of the
recommended sentence convinces us we must be sure that the jury did not
convict Minch of the exploitation and abuse charges for anything except his
guilt of the charged crimes. And we cannot say under the circumstances at
trial that it did. So we are constrained to reverse Minch’s convictions for
possession of child pornography and sexual abuse and sexual exploitation of a
minor.37
35 KRS 532.110(c) (“The aggregate of consecutive indeterminate terms shall not
exceed in maximum length the longest extended term which would be authorized by
KRS 532.080 for the highest class of crime for which any of the sentences is imposed.
In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70)
years.”); KRS 532.080(6)(b) (“If the offense for which he presently stands convicted is a
Class C or Class D felony, a persistent felony offender in the first degree shall be
sentenced to an indeterminate term of imprisonment, the maximum of which shall not
be less than ten (10) years nor more than twenty (20) years.”).
36 KRS 532.110(1)(c).
37 Another opinion issued today, Bounds v. Commonwealth, No. 2020-SC-
000492-MR (Ky. Sept. 30, 2021), reaches a different conclusion as to the admissibility
under KRE 404(b) of additional images of child pornography found on the defendant’s
computer. But critical factual distinctions in that case compel a different result:
Bounds’s defense was based on lack of knowledge—he disclaimed any awareness of
the child pornography found on his computer. So, evidence that Bounds’s computer
contained an additional 1,300 images of child pornography, placed in a folder bearing
his name, was probative of a material issue—whether he had any knowledge of the
child pornography for which he was indicted. See United States v. Caldwell, 181 F.3d
104 (6th Cir. 1999) (holding that orderly location of items of child pornography and
erotica was admissible to refute defendant’s claim of lack of knowledge). Additionally,
in Bounds, the trial court severed the defendant’s rape, sodomy, and sexual abuse
18
III. CONCLUSION
We find that Minch’s convictions for possession of child pornography,
use of a minor in a sexual performance, and sexual abuse of a minor cannot
stand because we are unable to say with assurance that his trial was not
rendered unfair by the introduction of highly inflammatory and prejudicial
evidence. We reverse the judgment and remand the case for further
proceedings consistent with this opinion.
All sitting. All concur.
charges, indicted under KRS Chapter 510, from the child pornography charges,
thereby eliminating the risk to Bounds that the jury might convict him of the sexual
abuse charges based on his large collection of child pornography images.
19
COUNSEL FOR APPELLANT:
Jared Travis Bewley
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Kristin Leigh Conder
Assistant Attorney General
20