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.”).
2

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
3

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 
4

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.
5

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?
6

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 sexualabuse 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. 
7

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.
8

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.
9

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.
10

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 
11

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.
12

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).
13

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

 

18 Hall 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.”).
14

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).
15

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 

 

24 Lawson, The Kentucky Evidence Law Handbook, § 2.20, at 37 (2d. ed. 1984)

(emphasis added). 

25 Metcalf, 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. 
16

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.
17

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). 
18

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-SC000492-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 
19

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.
20

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